STATE  OF  ILLINOIS. 

9  }-ss. 
County  of  Winnebago. 


ti  the  $muit 

OF  WINNEBAGO  COUNTY. 
IN"   CHANCERY 


.TOII>      A'.     FAR  WELL,    ft  al., 

Defentliiiil  s. 


ARGUMENT  OF  C.  M.  HAWLEY,  ESQ., 

On  the  hearing  in  behalf  of  the  Defendants. 


ARG-UMENT  OF 
C.    M.   H  A_WLE  Y,   Esq. 


STATE  OF  ILLINOIS,        )  In  the  Gwcint  Court  of  said 

V  **.  County 

COUNTY  OF  Jo.  DAVIS,  Ix 


ELISHA  S.  WADSWORTH,  ] 

vs. 

FRANCIS  B.  CO  OLE  Y,  I 

JOHN  V.  FARWELL,  and 
MARSHALL  FIELD,  Defendants.  } 

MAY  IT  PLKASE  THE  COURT. 

On  the  25th  of  July,  1803,  the  said  complainant  tiled  in  the 
Circuit  Court  of  Cook  County  his  bill  of  complaint  against  the 
said  defendants  to  set  aside  a  certain  Agreement  made  and 
entered  into  on  the  21st  day  of  January,  18*52,  by  and  between 
the  said  Wadsworth,  Cooley  &  Far  well,  on  the  ground  of 
deception  and  fraud  ;  by  which  said  agreement  all  the  copart- 
nership matters  that  had  heretofore  existed  between  them  were 
settled.  On  the  30th  of  September  thereafter,  the  defendants 
filed  their  answer,  denying  the  deception  and  fraud  ;  and  on 
the  same  day  the  said  Cooley  &  Farwell  filed  their  cross-bill  ; 
and  on  the  12th  of  October  following  the  said  Wadsworth  filed 
his  answer  to  said  cross-bill.  As  the  matters  of  the  said  plead- 
ings will  be  hereinafter  particularly  reviewed,  we  will  not  stop 
now  to  set  them  forth.  Owing  to  the  circumstance  that  his 
Honor,  Erastus  S.  Williams,  was  the  presiding  Judge  of  the 
said  Cook  County  Circuit  Court  at  the  time  the  said  Wads- 
worth  filed  his  bill  of  complaint,  and  at  the  same  time  counsel 
for  him,  it  was  mutually  agreed  by  and  between  the  parties  to 
this  suit  to  remove  the  same  to  this  Court. 

As  the  said  Agreement  is  the  first  or  main  object  of  attack 
on  the  part  of  the  complainant,  Wadsworth,  we  will  now  intro- 
duce the  same.  It  is  as  follows  : 

"  ARTICLES  OF  AGREEMENT,  Made  and  entered  into  this 
twenty-first  day  of  January,  A.  D.  1862,  between  F.  B.  Cooley, 
John  V.  Farwell  and  E.  S.  Wadsworth,  witnessetn  —  whereas, 
the  copartnership  existing  under  the  name  and  style  of  Cooley, 


Farwell  &  Co.,  expiring  on  the  first  day  of  February  next,  by 
limitation,  and  whereas,  there  was  on  hand  on  the  ninth  day  of 
January,  in  merchandise,  one  hundred  and  sixty-one  thousand 
and  forty-one  i8090  dollars,  at  invoice  price,  as  part  of  the  assets 
of  said  firms,  and  whereas,  E.  S.  Wadsworth  has  largely  over- 
drawn his  account,  and  has  furthermore  received  the  notes  of 
said  firm  for  ten  thousand  dollars,  Now,  therefore,  in  considera- 
tion of  the  premises  hereinbefore  stated,  it  is  hereby  agreed  by 
and  between  the  parties  aforesaid,  that  the  said  stock  of  goods, 
amounting  as  aforesaid,  to  $161,041.89,  shall  be  charged  to  the 
account  of  the  said  Cooley  and  Farwell,  at  invoice  price,  at 
the  date  of  said  invoice,  and  the  said  E.  S.  Wadsworth  hereby 
sells,  transfers  and  delivers  all  his  interest  in  said  stock  of 
goods  and  all  profits  made  on  sales  from  the  date  of  invoice  to 
the  first  day  of  February,  to  the  said  F.  B.  Cooley  and  John 
V.  Farwell,  in  consideration  of  the  premises  aforesaid,  and 
nothing  further  is  to  be  drawn  from  the  assets  of  the  aforesaid 
firm,  or  of  the  firm  of  Cooley,  Wadsworth  &  Co.,  until  the 
copartnership  debts  of  Cooley,  Farewell  &  Co.  are  fully  paid, 
after  which  the  remaining  assets  of  both  firms  shall  be  divided? 
pro  rata,  according  to  the  amounts  due  to  each. 

"  The  profits  of  each  member  of  the  aforesaid  firm  of  Cooley, 
Farwell  &  Co.,  being  determined  by  the  sale  of  the  stock  as 
before  stated,  and  as  shown  by  the  profit  and  loss  account,  all 
expenses  of  closing  the  business  of  said  firm  will  be  paid  from 
the  assets  left  in  the  hands  of  Cooley  and  Farwell  for  that  pur- 
pose, who  alone  are  authorized  to  sign  the  firm  name  in  liqui- 
dation of  its  business,  for  which  purpose  the  said  E.  S.  Wads- 
worth  agrees  to  give  each  of  them  a  power  of  attorney  to  exe- 
cute all  papers  necessary  in  the  disposal  of  any  property,  real 
or  personal,  that  may  be  acquired  or  is  now  on  hand  as  assets 
of  said  firms. 

"  Witness  our  hands  and  seals  the  day  and  year  first  above 
written. 

(Signed,  respectively  as  follows  :) 

F.  B.  COOLEY, 
JOHN  V.  FARWELL, 
E.  S.  WADSWORTH." 

The  first  question  that  arises,  is,  what  have  the  parties  to 
said  Agreement  done  by  it,  and  how  do  they  severally  stand 
under  it  ? 


RECITING  PART  OF  THE  AGREEMENT. 

1  st.  It  declares  that  the  copartnership  of  the  said  firm  of 
Cooley,  Far  well  &  Co.,  would  expire  on  the  1st  day  of  Feb'y, 
1 862,  by  limitation. 

2d.  That  on  the  9th  of  January,  1862,  there  Avas  on  hand 
merchandise  belonging  to  the  said  firm  at  the  invoice  price 
amounting  to  $161,041.89. 

4.  That  Wadsworth  had  at  that  time,  to-wit,  on  the  21st 
day  of  January,  1862,  largely  overdrawn  his  account  with  said 
firm  of  Cooley,  Far  well  &  Co.,  and 

o.  Wadsworth  had  received  from  the  said  firm  of  Cooley, 
Fanvell  &  Co.,  its  notes  for  $10,000,  and  therefore, 

6.  In  consideration  of  the  premises  hereinbefore  stated,  it 
was  agreed  by  and  between  the  said  Cooley,  Farwell  &  Wads- 
worth*  parties  to  said  agreement,  to-wit : 

1st.  That  the  said  merchandise,  at  invoice  price,  amounting 
to  the  said  sum  of  $161,041.89,  should  be  charged  to  the 
account  of  Cooley  &  Farwell  as  of  the  date  of  said  invoice, 
to-wit,  the  9th  day  of  January,  1862. 

2d.  Wadsworth  sold,  transferred  and  delivered  all  his 
interest  in  said  merchandise,  so  on  hand,  and  all  profits  made 
on  sales  from  the  said  9th  day  of  January,  to  the  1st  day  of 
February,  1862,  to  Cooley  &  Farwell,  in  consideration  of  the 
premises  above  stated. 

3d.  The  said  merchandise,  so  on  hand  and  sold,  transferred 
and  delivered  to  Cooley  and  Farwell,  were  to  be  charged  to  the 
account  of  Cooley  &  Farwell  at  the  invoice  price  as  of  the 
nth  day  of  January,  1862. 

4.  The  said  merchandise  being   unconverted  assets,   and 
taken  by  Cooley  &  Fanvell  at  the  invoice  price,  they  were 
charged  to  them,  as  so  much  of  the  unconverted  assets. 

3d.  That  the  snid  merchandise,  so  on  hand,  was  a  part  of 
the  assets  of  the  said  firm  of  Cooley,  Farwell  &  Co. 

5.  Nothing   further  was  to  be  drawn   by  either   Cooley, 
Farwell  or  Wadsworth  from  the  assets  of  either  the  firms  of 
Cooley,  Wadsworth  &  Co.,  No.  1   and  2,  or  Cooley,  Farwell 
&  Co.,  until  the  copartnership  debts  of  Cooley,  Farwell  &  Co. 
were  fully  paid. 

6.  When  the  debts  of  Cooley,  Farwell  &  Co.  were  paid, 
the  remaining  assets  of  the  said  firms  were  to  be  divided 
between  Cooley,  Farwell  and  Wadsworth,  pro  rata,  according 
to  the  amounts  due,  to  each  of  them.  .  .  .         .  .  , 


By  way  of  setting  forth  the  said  agreement,  and  to  explain 
portions  of  it,  as  they  understood  it,  the  parties  to  the  same 
further  say : 

1.  The  profits  of  each  partner  in  the  firm  of  Cooley,  Far- 
well  &  Co.  was  determined  by  the  sale  of  the  said  merchandise 
to  Cooley  &  Farvvell — that  is,  the  profits  were  ended — closed, 
and,  therefore,  they  say : 

2.  The  profit  and  loss  account  of  said  firm  of  Cooley,  Far- 
well  &  Co.  shows  that  the  profits  of  each  partner  in  this  firm 
were  determined — ended — closed ;  and,  because  the  profits  of 
each  partner  were  determined — ended — closed ;  therefore, 

3.  All  expenses  of  closing  the  business  of  the  said  firm  of 
Cooley,  Fanvell  &  Co.  were  to  be  paid  from  the  assets — the 
remaining  assets  of  the  three  said  firms,  and  which  assets  are 
for  this  purpose : 

4.  Left  in  the  hands  of  Cooley  &  Farwell. 

5.  Cooley  &  Farwell,  with  the  said  remaining  assets,  were 
to  pay  the  debts  and  expenses  of  closing  the  business  of  the 
said  firm  of  Cooley,  Farwell  &  Co. 

6.  Cooley  &  Fanvell,  for  the  purpose  of  closing  the  busi- 
ness of  the  firm  of  Cooley,  Farwell  &  Co.,  to-wit:  collecting 
and  converting  sufficient  of  said  remaining  assets  into  money 
to  pay  the  debts  and  all  expenses  of  closing  said  business,  are 
alone  authorized  to  sign  the  name  of  the  firm  of  Cooley,  Far- 
well  &  Co.  in  liquidating  the  firm's  business;  and,  to  do  this, 

7.  Wads  worth    agrees   to   give   a  power   of   attorney   to 
Cooley  &  Farwell,  and  to  each  of  them,  to  execute  all  papers 
necessary  in  the  disposal  of  any  property,  real  or  personal,  that 
may  be  acquired,  or  that  was  then  on  hand  as  assets  of  said 
firm,  in  order  for  them  to  be  facilitated  in  raising  money  from 
said  assets  to  pay  the  debts  and  all  the  expenses  of  closing  the 
business  of  the  said  firm  of  Cooley,  Farwell  &  Co. 

What  then  do  the  parties  to  this  agreement  respectively 
recognize  as  done  by  it,  and  what  do  they  severally  take  and 
receive  under  the  same?  In  answer  to  this  question,  we 
reply : 

1.  Cooley,   Farwvll   &    Wadsworth,   and   each   of   them, 
recognize  as  a  fact,  that  Wadsworth' s  account  was  largely 
overdrawn. 

2.  The  firm  of  Cooley,  Farwell  &  Co.  sold  the  merchandise 
on  hand  at  the  date  of  invoice,  to-wit,  ^January  9,  1862,  to 
Cooley  &  Farwell,  at  invoice  prices. 


5 

3.  Wadsworth,  on  the  21st  of  January,  1862,  sold,  trans- 
ferred and  delivered  to  Cooley  and  Farwell  his  interest  in  the 
said  merchandise,  at  invoice  prices,  amounting  to  $161,041.89, 
said  sale  to  take  effect  as  of  January  9,  1862. 

4.  Wadsworth  sold,  transferred  and  released  unto  Cooley 
&  Farvvell,  all  his  interest  in  profits  on  sales  of  merchandise 
from  and  after  January  9,  1862,  and  up  to  the  1st  day  of  Feb- 
ruary, 1862. 

5.  The  said  merchandise,  so  sold  as  aforesaid  to  Cooley  & 
Farwell,  was  to  be  charged  to  the  private  accounts  of  Cooley 
and  Farwell,  on  the  books  of  Cooley,  Farwell  &  Co. 

6.  Cooley  &  Farwell  took  the  said  merchandise  at  invoice 
prices,  as  so  much  of  the  unconverted  assets  belonging  to  the 
firm  of  Cooley,  Farwell  &  Co.  « 

7.  Wadsworth  received  [notice  the  language  in  the  agree- 
ment, to-wit :  whereas,  E.   S.  Wadsworth  has  received  the 
notes  of  the  firm  of  C.,  F.  &  Co.  for  $10,000]  from  the  firm  of 
Cooley,  Farwell  &  Co.,  the  sum  of  $10,000,  which  was  charged 
to  his  private  account. 

8.  The  profits  of  the  firm  of  Cooley,  FarweH  &  Co.  were 
determined — that  is,  the  profits  were  ended,  closed. 

9.  The  sale  of  the  merchandise  to  Cooley  &  Farwell,  as 
aforesaid,  determined,  ended,  closed  the  profits  of  the  firm  of 
Cooley,  Farwell  &  Co. 

10.  The  firm"   of   Cooley,   Farwell   &   Co.  was   dissolved 
before  the  time  of  its  limitation  by  the  mutual  agreement  of 
all  the  partners,  and  such  dissolution  to  take  effect  as  of  the 
9th  of  January,  1862. 

11.  The  business  of  the  said  three  firms  was  arranged  for 
being  finally  closed,  and  all  matters  of  account  between  the 
said  partners,  pertaining  to  said  three  firms,  finally  settled. 

12.  Cooley  &  Farwell,  by  the  agreement  of  all  the  part- 
ners, took  possession  of  all  the  remaining  assets  (that  is,  of 
all  the  assets  that  remained  after  the  said   merchandise   of 
$161,041.89  was  charged  to  Cooley  &  Farwell's  account),  and 
the  said  three  firms  of  Cooley,  Wadsworth  &  Co.,  No.  1  and 
2,  and  Cooley,  Farwell  &  Co.,  and  not  disposed  of. 

13.  Wadsworth  was  relieved  from  all  labor  in  collecting 
the  assets  to  pay  the  debts  of  Cooley,  Farwell  &  Co.,  and 
from  looking  after  the  payment  of  said  debts.     This  was  not 
small  consideration^  surely. 


14.  Cooley  <fc  Farwell  were  to  take  upon  themselves  the 
labor  of  paying  the  debts   and  the  expenses  of  closing  the 
business  of  the  firm  of  Cooley,  Farwell  &  Co.,  with  or  out  of 
the  said  remaining  assets.     And  this  was  not  a  small  under- 
taking, surely,  and  especially  at  that  time. 

15.  Wadsworth  released  all  his  interest  in  profits  made  on 
sales  of  merchandise  from  and   after  the  9th  day  of  January, 
1862,  to  the  1st  day  of  February,  1862,  to  Cooley  &  Farwell. 

1G.  Wadsworth  Avas  relieved  and  released  by  Cooley  A: 
Farwell  from  all  labor  or  effect  about  raising  or  loaning  money 
to  pay  the  debts  of  Cooley,  Farwell  &  Co. 

17.  The  assets — the  said  remaining  assets  of  the  said  three 
firms,  were  to  be  held  and  used  in  paying  the  debts  and  the 
expenses  of  closing  the  business  of  the  firm  of  Cooley,  Far- 
weU  &  Co. 

18.  Cooley  &  Farwell  were  to  hold  and  use,  as  the  trustees 
of  the  said  firms,  the  said  remaining  assets.     First,  to  pay  the 
debts  of  Cooley,  Farwell  &  Co.     Second,  to  pay  all  expenses 
of  closing  the  business  of  the  said  firm.     Third,  after  the  pay- 
ment of  the  said  debts,  Cooley  &  Farwell,  as  the  said  trustees, 
were  to  surrender  their  trust,  and  then  the  remaining  assets 
were  to  be  divided  between  the  partners,  pro  rata,  according  to 
the  amount  due  to  each. 

19.  Cooley  &  Farwell,  as  trustees  for  said  purpose,  were 
to  proceed  and  convert  so  much  of  the  said  remaining  assets 
so  placed  in  their  hands  by  the  said  three  firms,  as  would  be 
sufficient  to  pay  debts  and  to  close  the  business  of  the  firm  of 
Cooley,  Farwell  &  Co. 

20.  The   moneys   so  realized  from  said   remaining  assets 
were  to   be   appropriated  by  Cooley  &  Farwell  to  pay  the 
debts  and  all  expenses  of  closing  the  business  of  the  firm  of 
Cooley,  Farwell  &  Co. 

21.  To  enable  Cooley  &  Farwell  to  convert  so  much  of 
said  remaining  assets  into  money,  as  would  be  sufficient  to  pay 
the  said  debts  and  expenses  of  closing  the  business  of  the  firm 
of  Cooley,  Farwell  &  Co.,  Wadsworth  gave  to  Cooley  &  Far- 
well  his  power  of  attorney  to  act  for  him  and  in  his  stead,  and 
to  sign  his  name  to  all  instruments  in  all  matters  necessary  to 
close  said  business  and  pay  said  debts. 

21st.  The  remaining  assets  were  to  be  by  the  said  several 
partners  divided  between  them,  pro  rata,  according  to  the 
amounts  due  to  each — that  is,  each  partner  was  to  take  in 


assets  his  interest  in  the  vihole  amount  of  assets  so  remaining, 
and  each  of  the  others  were  to  release  their  interest  in  the  por- 
tion, that  should  under  the  division  fall  to  each. 

:.'2d.  This  agreement  then  supersedes  all  the  previous  agree- 
ments made  by  and  between  the  said  partners,  including  the 
several  copartnership  articles  of  agreement,  and  from  that  time 
it  was  the  only  agreement  between  them,  and  was  a  full  and 
final  settlement  of  all  copartnership  matters  of  the  said  three 
firms  then  remaining  unsettled.  This  agreement  took  all  mat- 
ters between  them  not  only  out  of  all  preceding  agreements, 
but  out  from  the  control  of  the  law  governing  all  other  or  pre- 
ceding agreements.  Rules  that  would  have  controlled  the 
former  agreements,  touching  the  refunding  of  capital  contri- 
buted to  the  capital  of  the  unsettled  firms,  have  nothing  to  do 
in  regulating  their  several  rights  under  this  new  and  final 
agreement,  for  it  prescribes  the  rights  of  each  partner,  and- the 
disposition  of  the  remaining  assets  after  the  debts  are  paid 
between  them.  By  this  agreement  the  rights  of  the  several 
partners  in  said  remaining  assets  are  thrown  into  hotch-potch 
— that  is,  their  capital  and  profits  without  distinction  are 
thrown  into  one  fund  and  were  called  assets ;  and  then  they 
agree  upon  the  mode  of  separating  such  interests,  or  assets, 
to  wit,  by  dividing  them,  prorata,  between  the  partners  accord- 
ing to  what  is  due  to  each  partner,  or  according  to  the  interest 
of  each  partner  in  the  gross  amount.  To  do  this  they  may 
agree  upon  a  division  of  said  remaining  assets,  or  the  assets 
may  be  sold  at  auction,  and  then  the  avails  so  divided. 

We  cannot  go  behind  this  Agreement,  unless  it  is  mutually 
surrendered  by  all  the  parties  to  it,  or  it  is  impeached  by  posi- 
tive evidence  of  fraud. 

I.  The  complainant  must  make  a  positive  charge  of  fraud 
against  Cooley  and  Farwell,  or  one  of  them,  in  making  the  same. 

II.  Complainant  must   charge   that  representations   were 
made   by  Cooley  &  Farwell  to  him  which   were   false  and 
fraudulent,  and  were  material,  and  that  he  relied  on  them,  and 
that  he  had  no  other  means  of  knowing  or  learning  the  truth- 

O  O 

fulness  or  falsity  of  the  same,  except  from  them. 

III.  Complainant  must  then   introduce   positive    evidence 
that  his  charges  and  averments  are  true. 

To  ascertain  these  particulars,  we  must  look  into  the  com- 
plainant's bill  of  complaint  and  his  evidence  to  sustain  his 
charges. 


8 

We  will  examine  the  principal  allegations  in  his  bill  of  com- 
plaint and  enquire  into  the  proof  to  see  whether  that  sustains 
them,  or  either,  and  which  of  them. 

1st  Allegation.  On  page  2,  complainant  states,  "  that  he 
"  and  Wm.  H.  Phelps,  in  the  year  184-8,  formed  a  copartner- 
"  ship  under  the  firm  name  of  Wadsworth  &  Phelps,  and  con- 
"tinued  in  business  until  March  1st,  1851,  when  this  firm  was 
"  dissolved  (page  3)  and  that  complainant  and  Phelps,  feeling 
"  that  the  good  will  of  the  business  was  too  valuable  to  be  lost, 
"  they  resolved  to  form  a  new  firm,  with  Francis  B.  Cooley  and 
"  John  V.  Farwell  as  partners  with  them,  that  Cooley  had  but 
"  a  small  capital  and  a  very  limited  business  experience  as 
"  clerk  in  his  father's  store  in  an  obscure  town  in  New  Eng- 
"  land."  The  answer  of  defendant  denies  these  allegations. 

O 

Are  they  true  under  the  evidence  ? 

Wm.  H.  Phelps  testifies  on  page  440,  ans.  to  the  3d  int., 
"  that  the  firm  of  Wadsworth  &  Phelps  was  organized  in  1848 
"  and  continued  3  years.  That  it  was  organized  by  Wads- 
"  worth  &  Phelps,  with  a  capital  stock  of  $40,000.  Of  this 
"  Phelps  paid  in  money  $20,000,  and  Wadsworth  paid  his  in 
"  goods,  that  the  profits  and  losses  were  borne  equally.  That 
"  Francis  B.  Cooley  entered  this  firm  6  or  8  months  after  its 
"  formation,  by  purchasing  half  of  Wadsworth's  interest 
"  therein,  and  he  drew  profits  in  that  proportion. 

On  page  43.  ans.  16,  Phelps  testifies,  "  that  at  the  time  of 
"  the  dissolution  of  this  firm,  Mr.  Wadsworth  and  himself  con- 
"  eluded  to  wind  up  the  business."  On  the  same  page  443,  ans. 
to  17  int.  he  further  testifies,  "that  on  the  dissolution  of  this 
"firm,  Cooley,  Farwell  and  himself  decided  to  form  a  co- 
partnership under  the  name  of  'Cooley,  Phelps  &  Co.,' 
"  composed  of  Cooley,  Phelps  &  Farwell."  On  page  444,  in 
his  ans.  to  the  19  and  20  intg's,  he  testifies,  "  that  the  said  firm 
of  Cooley,  Phelps  &  Co.,  was  soon  changed  so  as  to  admit 
Wadsworth  as  a  partner,  but  he  cannot  say  at  whose  instance 
it  was  done." 

On  page  446,  ans.  to  the  35  and  36  intg's,  he  says,  "  that  the 
consideration  of  Wadsworth's  admission  into  the  firm  was  the 
capital  he  paid  in,  which  he  derived  from  his  portion  of  the 
goods  and  perhaps  collections  of  the  former  firm."  On  page 
447,  ans.  41  and  42,  he  testifies,  that  the  original  capital  of 
Wadsworth  in  the  firm  of  Wadsworth  &  Phelps,  consisted  of 
goods  which  Wadsworth  bought  on  a  credit  of  from  8  to  12 
months." 


Joseph  S.  Miles  testifies  on  page  668,  inty.  18,  "  that  there 
were  three  partners  in  the  firm  of  Wadsworth  &  Phelps,  to- 
wit :  Elisha  !S.  Wadsworth,  William  H.  Phelps  and  Francis  B. 
Cooley." 

The  testimony  then  impeaches  this  allegation  of  the  Bill  as 
follows : 

1.  By  making  Cooley  a  partner  in  the  firm  of  Wadsworth 
&  Phelps. 

2.  In  showing  that  his  capital  and  interest  in  this  firm  was 
equal  to  Wadsworth. 

3.  In  proving  that  Wadsworth  had  no  intention  at  the  close 
of  this  firm  to  continue  its  business  ;  but,  on  the  contrary,  Mr. 
Wadsworth  had  concluded  at  and  before  the  time  of  the  disso- 
lution of  this  firm  to  wind  up  the  business. 

4.  In  showing  that  at  the  close  of  this  firm,  Gooley,  Phelps 
&  Far  well  formed  a  new  copartnership  under  the  firm  name  of 
Cooley,  Wpi  mi  nth,  Phelps  &  Co. 

5.  In  showing  that  Phelps  did  not  regard  the  good  will  of 
Wadsworth  too  valuable  to  be  lost,  for  he  made  his  arrange- 
ments without  regard  to  the  same,  to  go  on  with  the  business 
with  Cooley  &  Farwell  as  partners. 

6.  In  showing  that  there  was  no  resolution  on  the  part  of 
Phelps  &  Wadsworth  to  form  a  new  firm  with  Cooley  &  Far- 
well  as  their  copartners. 

7.  In  showing  that,  without  even  consulting  Wadsworth, 
Cooley,  Phelps  and  Farwell  formed  a  new  copartnership   to 
carry  on  said  business  under  the  name  of  Cooley,  Phelps  & 
Co.,  and  that  Wadsworth  had  nothing  to  do  or  say  about  its 
formation. 

8.  In  showing  that  Wadsworth  was  not  admitted   to  this 
firm  until  after  it  was  organized. 

9.  In  showing  that  the  firm  name  of  Cooley,  Phelps  &  Co., 
when  Wadsworth  was  admitted  as   a  partner  therein,   was 
changed  to  that  of  Cooley,  Wadsworth,  Phelps  &  Co.,  with  a 
capital  of  $30,000 ;  and  that   of  this  capital,  Cooley  paid  in 
$16,000,   Phelps   paid  in  $8,000,  Wadsworth  paid  in  $5,000, 
and  Farwell  paid  in  $1,000.      It  will  also  be  remembered  that 
Mr.  Spink  testifies  that  Farwell  afterwards  in  fact  paid  the  sum 
of  $1,000  additional  capital  into  this  firm. 


10 

SECOND  ALLEGATION  OF  BILL. 

On  page  2,  complainant  alleges,  "  that  he  took  an  active 
and  leading  part  in  the  business  of  the  said  firms,  and  acquired 
an  extensive  acquaintance  among  merchants  and  farmers 
through  the  North-west,  and  among  the  principal  importers 
and  wholesale  dealers  and  manufacturers  in  Eastern  cities, 
and  likewise  acquired  a  wide-spread  credit  and  influence ;  and 
that  complainant's  firms  were  sought  after  by  both  buyers  and 
sellers ;  so  that  they  were  enabled  to  buy  and  sell  to  great  ad- 
vantage, and  that  the  credit,  influence  and  good  will  of  com- 
plainant were  of  great  value." 

On  page  3,  he  alleges,  "that  Farwell,  when  .he  entered 
into  the  employ  of  the  firm  of  Wadsworth  &  Phelps,  was  a 
very  young  man,  without  capital  or  credit,  and  with  no 
valuable  business  acquaintance,  and  that  his  knowledge  of 
business  was  very  limited;  but  he  admits  that  he  had  consid- 
erable industry  and  capacity  for  business,  and  inspired  com- 
plainant with  the  utmost  confidence  in  him."  And  on  page  3, 
he  says,  "  Cooley's  capital  was  small  and  his  experience 
limited." 

On  page  8,  he  says,  "  that  mainly  owing  to  his  (Wads- 
worth's)  credit  and  influence,  the  firms,  to-wit :  Wadsworth  & 
Phelps,  Cooley,  Wadsworth  &  Co.,  Nos.  1  and  2,  C.  N. 
Henderson  &  Co.,  and  Cooley,  Farwell  &  Co.,  transacted  a 
large  and  profitable  business,  and  that  thereby  (that  is,  by 
complainant's  credit  and  influence,)  Cooley  &  Farwell  were 
enabled  to  amass  a  considerable  fortune." 

On  page  14,  he  says,  "  that  in  the  spring  of  1859,  Cooley  & 
Farwell  acquired  a  little  independent  credit  of  their  own,  and 
"  by  their  attention  to  the  business  of  the  said  firm  of  Cooley, 
"  Farwell  &  Co.  had  become  acquainted  with  buyers  and  sell- 
"  ers  east  and  west,  and  in  a  manner,  had  become  independent 
"  of  complainant." 

On  page  5,  complainant  alleges  "  that  he  was  exempt  from 
"  active  duty  in  the  business,  because  his  credit  and  influence 
"  were  indispensable  in  the  prosecution  of  the  business  and 
"  were  far  more  valuable  than  the  services  of  the  active  part- 
"  ners."  By  these  allegations,  complainant  seeks  to  establish 
before  this  Court : 

1.  That  the  firms  of  Wadsworth  &  Phelps,  Cooley,  Wads- 
worth  &  Co.,  and  C.  N.  Henderson  &>  Co.,  and  in  fact  Cooley, 


11 

Harwell  &  Co.,  were  formed  and  established  upon  complain- 
ant's credit  with  eastern  manufactures,  importers  and  whole- 
sale dealers. 

2.  That  complainant,  up  to  the  spring  of  1859,  was    the 
active  and  leading  business  man  in  all  these  firms,  and  that 
therefore  his  influence  over  the  trade  of  the  North-west,  was 
the  principal  influence  in  behalf  of  said  firm's  business. 

3.  That  Cooley  &  Far  well,  up  to  the  spring  of  1859,  had 
but  a  very  small  capital,  and  no  credit,  no  business  experience, 
and  no  influence,  that   was  of  any  advantage  to  said  firms  or 
either  of  them. 

These  are  surely  modest  pretensions.  The  answer  denies 
these  allegations.  Does  the  evidence  sustain  them  or  either 
and  which  of  them  V  Complainant  has  not  introduced  a  single 
witness  to  prove  either  of  these  assumptions.  In  this  respect 
or  upon  these  points  he  has  in  fact  abandoned  his  complaint. 
The  defendants  have  evidence  upon  these  points — we  will  ex- 
amine it. ' 

For  his  (Wadsworth's)  credit  and  influence  with  eastern 
manufactures  we  call  especial  attention  to  the  testimony  of 
Hiram  Pierce,  on  page  455,  and  that  of  Pomeroy  Higley,  on 
page  477,  of  printed  evidence. 

Mr.  Pierce  testifies  on  page  455-6,  inty's  3,  4  and  5,  "  that 
"  Seth  Thomas,  of  Plymouth,  Conn.,  from  1823  to  1858,  was  in 
"  that  place  a  manufacturer  of  cotton  sheeting  and  clocks,  and 
"  the  largest  business  man  of  the  place,  and  that  he  sold  his 
"  cotton  goods  through  commission  merchants  and  by  himself 
"  in  Hartford,  Conn.,  New  York  and  Philadelphia,  and  also  in 
"the  Middle  and  Western  States  and  in  New  England." 

On  page  456-7-8,  he  further  testifies,  "  that  Seth  Thomas 
"  owned  lands  in  Cook  County,  111.,  and  that  complainant  was 
"his  agent,  and  that  in  1852,  complainant  as  agent  of  Thomas, 
"  (see  inty.  11,  page  459,)  informed  Thomas  that  he  had  a  frac- 
tional 40  in  Cook  Co.,  and  that  he  had.  had  an  ofler  of  $75 
"for  it,  and  that  complainant  had  offered  it  for  $100,  and 
"  asked  Mr.  Thomas  if  he  should  sell  it  for  $75.  He  also,  at 
"  this  time,  informed  Thomas  that  he  had  found  adverse  claim- 
"  ants.  Mr.  Thomas  replied,  '  i  know  very  little  of  the  mat- 
"  ter,  therefore  confide  in  your  (complainant's)  opinion.' 
"  Complainant  sold  this  land  to  Jno.  Woodbridge,  jr.,  for  $75, 
"  and  sent  a  Warranty  Deed  to  Thomas  for  him  to  execute. 


12 

"The  consideration  in  the  deed  was  $600,  instead  of  $75. 
"  Mr.  Thomas  refused  to  execute  the  deed,  and  directed  com- 
"plainant  to  execute  a  quit  claim  deed  to  him,  which  he  did. 
"  See  the  correspondence  and  deed  on  pages  470  to  475  inclu- 
"sive.)  Some  time  after  this,  Mr.  Higley,  another  agent  of 
"  Thomas,  informed  him  (Thomas)  that  if  he  had  not  sold  the 
"  land,  not  to  sell  it,  as  it  had  become  of  great  value.  Mr. 
"  Thomas  said  he  had  been  defrauded  by  the  representations 
"  of  Wadsworth — that  he  had  represented  this  land  as  4  acres, 
"  when  in  fact  it  was  5  acres,  by  which  he  inferred  the  land 
"  lay  out  of  the  city  of  Chicago.  Mr.  Woodbridge  conveyed 
*'  half  of  it  to  Mr.  Wadsworth's  wife.  Mr.  Thomas  regarded 
"  this  a  conspiracy  between  Wadsworth  and  Woodbridge  to 
"obtain  the  land  for  a  small  sum  of  money.  Mr.  Thomas 
"  brought  a  suit  in  the  United  States  Court  at  Chicago  against 
"  Wads\vorth  and  Woodbridge  to  recover  this  land.  Mr. 
"Sedgwick  (a  railroad  agent)  wanted  to  purchase  this  land  of 
"  Mr.  Thomas,  and  said  that  Woodbridge's  claim  with  others 
"in  Chicago,  would  cost  him  $1 1,000,  and  Thomas'  claim  at 
"$7,000,  as  would  make  the  land  worth  $18,000."  (See  cross- 
int.  4  and  6.  page  460.) 

Mr.  Pierce  says  in  ans.  to  16  int.,  page  459,  "  that  the  effect 
"  of  this  transaction  upon  Mr.  Thomas,  was  to  convince  him 
"  (Thomas)  that  Wadsworth  had  committed  a  breach  of  trust, 
"  and  that  he  had  deceived  him  ;  and  that  this  transaction  was 
"  known  in  Hartford,  Conn.,  and  that  Mr.  Thomas  took  no 
"  pains  to  conceal  it,  and  that  depositions  in  the  case  were 
"t.iked  before  the  Mayor  of  Hartford,  and  the  transaction  was 
"generally  known  by  the  people  in  Plymouth."  Inty's  17 
and  18,  page  459. 

"  On  page  479,  inty  4,  Mr.  Higley  testifies,  "  that  the  railroad 
"agent  proposed  to  pay  for  this  land  $19,000.  Mr.  Thomas 
"was  to  have  89,000  and  Woodbridge  $10,000.  Mr.  Thomas 
"claimed  the  $10,000,  and  finally,  he  (the  H.  R.  agent)  gave 
"  Thomas  for  his  suit  claim  $7,000  and  a  note  for  $500."  (See 
cross-in t.  25,  page  483-4.) 

On  page  480,  inty  6,  Higley  testifies,  "  that  the  effect  of  this 
"  trmsaction  upon  the  credit  of  Wadsworth  was  that  Mr. 
"  Thamas  lost  confidence  in  him." 

On  page  48 1-,  int.  7,  Mr.  Higley  testifies,  "that  this  land  was 
"  situated  in  the  city  of  Chicago." 


13 

Mr.  Spink  testifies  (see  page  222,  cross-inty  196),  "  that  some 
"  time  in  1858,  Mr.  Wads  worth's  circumstances  were  consid- 
"  ered  rather  precarious  and  his  credit  far  from  being  as  good 
"  as  it  had  been.  He  raised  some  money  by  his  credit  being 
•'  assisted  by  collaterals."  Page  198. 

Mr.  Parks  testifies  on  page  368,  inty  0,  "  that  Mr.  Wads- 
"  worth  never  took  an  active  part  in  the  business  of  Cooley, 
"  Wadsworth  &  Co.,  while  he  was  with  them,  and  he  entered 
"  the  employ  of  this  firm  in  August,  1852,  and  continued  about 
"  two  years."  Page  366,  inty  3. 

Mr.  Parks,  on  page  376,  inty  37,  refuses  to  answer  as  to  the 
confessions  of  complainant  to  him  as  to  his  ability  and  dis- 
ability to  pay  his  (complainant's)  debts. 

Mr.  Phelps  testifies,  on  page  441-2,  inty  3,  8,  9,  10,  11,  12, 
and  13,  that  "for  the  first  6  months,  Mr.  "Wadsworth  (after 
"  1848,  inty  3)  gave  his  personal  attention  to  the  business  when 
"  in  town,  after  that,  he  did  not  confine  himself  to  the  business. 
"  At  this  time  Wadsworth  had  some  acquaintance  and  some 
"influence.  When  I  first  went  there  (1848)  Wadsworth  had 
"  the  control  of  business,  but  after  the  first  6  or  8  months,  I 
"  had  the  control.  Mr.  Wadsworth  (12)  gave  very  little  of  his 
"  personal  attention  to  the  business  after  the  first  six  months  in 
"  any  respect.  He  devoted  his  attention,  I  suppose,  to  his  own 
"  private  business  (13)." 

He  further  testifies  on  page  445,  inty  30,  "  that  Mr.  Cooley 
"  and  Mr.  Farwell  took  the  general  supervision  and  control  of 
"  the  business  of  the  firm  of  Cooley,  Wadsworth,  Phelps  &  Co. 
"  at  Chicago,  and  Mr.  Phelps  bought  the  goods  in  New  York. 
"  Mr.  Wadsworth  employed  his  time,  I  suppose,  in  his  private 
"business  (see  page  446,  inty  31)." 

On  page  446,  inty  35,  he  testifies,  "  that  the  consideration  in 
"  fact  that  caused  Phelps,  Cooley  &  Farwell,  to  admit  Wads- 
"  worth  into  the  firm  of  Cooley,  Phelps  &  Co.,  was  his  (Wads- 
"  worth's)  capital,  of  course" 

William  Lovejoy,  of  Boston,  testifies  on  page  453,  int'y  22, 
"  that  he  knows  nothing  of  the  responsibility  or  basis  of  Wads- 
"  worth's  credit.  I  heard  a  report  (int'y  25)  that  Wadsworth's 
"liabilities  did  not  exceed  $150,000,  (this  was  in  1861). 

Simeon  Farwell  testifies  on  page  622-3-4,  int'y  3,  4,  and  to 
the  18  inclusive,  "that  he  commenced  with  the  firms  of  Cooley, 
"  Wadsworth  &  Co.,  No.  1  and  2,  and  continued  till  the  close  ^ 


14 

"  of  those  firms,  and  then  continued  on  with  Cooley,  Farwell 
"  &  Co.,  till  the  25th  October,  1857,  as  clerk,  bookkeeper  and 
"  traveling  agent;  and  that  during  that  time  Cooley  &  Farwell 
"  were  the  active  partners.  Cooley  was  in  New  York  most  of 
"  the  time,  Mr.  Wads  worth  attended  to  all  appearance  to  his 
"  individual  business.  John  V.  Farwell  had  the  control  and 
"  direction  of  the  business  in  Chicago  and  Cooley  in  New 
"  York.  Farwell  had  the  acquaintance  with  the  customers 
"  and  the  influence  over  customers  by  himself  and  clerks. 
"  Customers  enquired  for  Mr.  Farwell,  and  new  ones  had  to 
"  pass  through  his  hands  to  get  credit.  Mr.  Farwell  gave  to 
"  salesmen  and  traveling  agents  their  instructions.  Mr.  Wads- 
"  worth  during  the  time  I  was  there  had  no  connection  with 
"  the  active  business  of  either  of  the  firms  ;  his  acquaintance 
"  with  country  merchants  was  very  limited." 

C.  B.  Farwell  testifies  on  page  638,  int'y  4,  "  that  J.  V.  Far- 
"  well  in  the  fall  of  1857,  came  to  me,  and  wanted  me  to 
"  endorse  the  paper  of  the  firm  of  C.,  F.  &  Co.,  which  I  did  in 
'  about  $100,000,  and  that  the  complainant  had  promised  to 
"  furnish  capital  or  facilities,  instead  of  which  the  firm  was 
"  obliged  to  provide  for  some  $25,000  of  complainant's  paper." 

Joseph  S.  Miles  testifies  on  page  656-7-8,  int'y  3,  "  that  he 
"  was  with  the  firms  of  C.,  W.  &  Co.,  No.  1  and  2,  from  March 
"  1,  1851,  to  the  1st  of  February,  1857,  as  salesman.  Cooley 
"  and  Farwell  had  the  principal  charge  of  the  business  (4). 
"  Mr.  Wadsworth  did  not  have  a  great  deal  to  do  with  the 
"  customers.  He  did  not  take  an  active  part  in  the  business 
"  (5  and  6).  Wadsworth  never  traveled  in  the  country  to  col- 
"  lect  debts,  nor  did  he  sell  goods ;  he  took  no  active  part  in 
"  the  business.  Mr.  J.  V.  Farwell  made  considerable  effort  to 
"  introduce  customers  and  introduced  a  good  many  (13).  Far- 
"  well  came  from  the  house  of  Hamlin  &  Day,  wholesale  deal- 
"  ers  in  dry  goods  in  Chicago.  Int'y  25,  26,  27,  28,  29.  He 
"  was  with  them  several  years.  Int'y  33.  Cooley,  I  suppose, 
"  had  money  and  some  credit.  Int'y^4.  John  V.  Farwell  was 
"  bookkeeper  for  the  firm  of  WadsAvorth  &  Phelps,  and  trav- 
"  eled  in  the  country  to  collect  debts.  Int'y  36.  The  active 
"  partners  of  the  firm  of  Wadsworth  &  Phelps,  were  Phelps 
"  and  Cooley.  Int'y  19.  When  I  first  commenced  work  for 
"  the  firms,  there  were  perhaps  three  or  four  customers  to 
"  whom  Wadsworth  would  occasionally  sell  goods  to,  and  it 


15 

"  was  only  for  a  short  time  that  he  pretended  to  sell  goods 
"  (20).  There  was  no  other  branch  of  the  business  that  Wads- 
"  worth  cared  for.  He  was  about  there  most  of  the  time  (21). 
"  When  I  first  went  to  work  for  them,  Phelps  was  the  principal 
"manager  of  the  business  (23).  Wadsworth  appeared  ac- 
"  qainted  with  quite  a  number  of  the  old  customers.  The 
"trade  was  made  after  the  first  few  months,  and  of  the  new 
"  customers,  I  don't  think  he  knew  very  much  about  them,  as 
"  he  did  not  take  an  active  part  among  them  (24).  The  active 
"partners  in  the  firm  of  Cooley,  Wadsworth,  Phelps  &  Co., 
"were  Cooley,  Phelps  and  Farwell  (26).  Wadsworth  had 
"  had  considerable  outside  (private)  business.  I  don't  know 
"  what  it  was,  I  don't  think  he  spent  much  of  his  time  on  the 
"business  of  the  firm  (27).  Cooley  and  Farwell  made  the 
"  acquaintance  of  the  new  customers,  I  think  they  all  passed 
"  through  Farwell' s  hands  in  obtaining  credit  (28).  The  active 
"partners  in  the  1st  and  2d  firms  of  Cooley,  Wadsworth  & 
"  Co.,  were  Cooley  and  Farwell  (29).  The  acquaintance  of 
"  country  merchants  was  made  by  traveling  about  the  country 
"  and  at  home  (32).  Cooley,  Farwell,  Parks,  Akin,  Simeon 
"  Farwell  and  myself  performed  these  services  (33).  Mr.  Far- 
"  well  was  the  most  influential  among  the  customers  during 
"  the  existence  of  Cooley,  Wadsworth  &  Co.,  No.  1  and  2  (34). 
"  Farwell's  business  reputation  was  good  during  the  firm  of 
"  Wadsworth  &  Phelps  (35).  Mr.  Farwell's  business  qualifi- 
"  cations  were  good  (36).  3.  Mr.  Farwell,  when  he  went  into 
"  the  employ  of  the  firm  of  Wadsworth  &  Phelps,  was  not  very 
"  wealthy.  I  don't  know  whether  he  had  $1,000  or  $5,000,  or 
"  more  than  that ;  I  believe  he  had  a  house  and  lot  and  a  few 
"  hundred  dollars  in  money  (38).  I  suppose  at  this  tune  his 
"  reputation  was  as  good  as  any  young  man  of  his  means  (39)." 

On  page  313,  int'y  67,  C.  M.  Henderson  testifies,  "that  he 
"  does  not  think  Wadsworth  knew  anything  of  the  business 
"  standing  of  country  merchants  buying  in  Chicago." 

By  this  testimony  the  allegations  last  referred  to  are  found 
untrue,  as  follows  : 

1st.  By  showing  that  Wadsworth's  credit  was  not  an  essen- 
tial in  the  agreements,  by  which  the  firms  of  Wadsworth  & 
Phelps,  Cooley,  Wadsworth,  Phelps  &  Co.,  Cooley,  Wads- 
worth  &  Co.,  No.  1  and  2,  Cooley,  Farwell  &  Co.,  and  C.  X. 
Henderson  &  Co.  were  formed. 


1C 

2d.  By  showing  that  whatever  of  credit  he  might  have  had, 
if  any,  with  eastern  manufacturers,  importers  and  wholesale 
f/^  .  _~  merchants,  by  his  own  foolish,  if  not  fraudulent  act,  as  the 
agent  of  Seth  Thomas,  in  selling  his  land  for  $75  to  his  brother- 
in-law,  and  by  his  brother-in-law,  therefore,  conveying  half  of 
the  same  to  Wadsworth's  wife,  when  at  the  time  the  land  was 
worth  from  18  to  20,000  dollars,  had  been  greatly  impaired  or 
wholly  lost. 

3d.  By  not  showing  affirmatively  that  he  had  any  credit 
with  eastern  manufacturers,  importers  and  wholesale  dry  goods 
merchants. 

4th.  By  showing,  that  from  1848,  when  the  firm  of  Wads- 
worth  &  Phelps  was  formed,  to  the  2 1st  of  January,  1862,  when 
the  firm  of  Cooley,  Farwell  &  Co.  was  dissolved,  that  com- 
plainant had  little  or  nothing  to  do  with  the  business  of  those 
and  the  intermediate  firms,  and  little  or  no  influence  over  their 
business  and  customers. 

5.  By  showing  that  Phelps  and  Cooley  were  the  active  and 
leading  partners  in  the  firm  of  Wadsworth  &  Phelps,  and  were 
the  men  of  influence  in  that  firm's  business. 

6.  By  showing  that  Cooley,   Farwell  &  Phelps  were  the 
only  active  and  leading  business  partners,  whose  influence  were 
of  any  value  to  the  business  interests  of  the  firm  of  Cooley, 
Wadsworth,  Phelps  &  Co. 

*7.  By  showing  that  Cooley  and  Farwell  were  the  only  ac- 
tive, influential  and  leading  business  partners  in  the  firms  of 
Cooley,  Wadsworth  &  Co.,  Nos.  1  and  2,  and  Cooley,  Farwell 
<fc  Co. 

8.  By  showing  that  the  customers  were  made  by  Cooley  & 
Farwell,  and  their  clerks. 

9.  By  showing  that  Wadsworth  had  no  valuable  influence 
over   customers  in  the  Northwest,   or  with  the  customers  "of 
either  of  said  firms. 

10.  By  showing  that  Cooley  and  Farwell,  by  their  own 
labors,  perseverance,  business  tact  and  capacity,  accumulated 
what  they  did. 

11.  By  showing  that  Cooley's  capital  in  the  firm  of  Wads- 
worth  &  Phelps,  was  equal  to  Wadsworth's,  and  in  all  the  said 
subsequent  firms  it  was  much  greater  than  his. 

12.  By  showing  that  Farwell  had   capital,    and  business 
credit,  and  influence,  and  capacity,  and  that  he  gave  his  whole 
attention  to  the  business  of  the  said  firms. 


17 

1 3.  By  showing  that  Cooley  and  Farwell  had  the  principal 
business  experience,  and  influence,  and  credit,  and  that  Wads- 
worth,  in  capital,  was  second  to  Cooley,  and   that  in  all  other 
respects  he  was  of  little  or  no  advantage  to  the  business  of 
either  of  the  said  firms. 

14.  By  showing  that  the  capital  which  he  invested  was  the 
sole  consideration  of  his  being  admitted  to  said  partnerships. 

15.  By  showing  that  Farwell,  years  before  he  became  the 
clerk  of  the  said  firm  of  Wadsworth  &  Phelps,  was  in  active 
business  in  Chicago  with   the   wholesale   dry  goods  firm  of 
Hamliu  &  Day,  and  at  that  time  controlled  a  large  trade  in 
Chicago. 

16.  The  fact  that  complainant  was   released  from   service 
simply  because  he  agreed  to  put  in  more  capital  than  Farwell, 
and  that  Farwell' s  time  and  capital  were  to  balance  complain- 
ant's capital,   and  thereby  complainant  and  Farwell  were  to 
have  each  a  quarter's  interest  in  the  profits,  proves  his  allega- 
tion, as  to  his  great  credit  and  influence,  to  be  without  foun- 
dation. 

]  7.     His  failure  to  make  good  this  allegation  by  proof,  is 
evidence  that  it  was  not  to  be  found. 

THIRD  ALLEGATION. 

On  pages  6  and  7,  he  alleges,  among  other  things,  "  that 
"about the  15th  of  August,  1851,  with  Charles  N.  Henderson 
"  &  Cooley,  he  formed  a  copartnership  for  the  transaction  of 
"  the  wholesale  boot  and  shoe  business  in  Chicago,  under  the 
"  firm  name  of  C.  N.  Henderson  &  Co.,  upon  a  capital  of 
"  $20,000  :  Henderson  to  furnish  $15,000,  and  Cooley  and  him- 
"  self  the  remaining  $5,000,  and  that  Cooley  and  himself  were 
"  to  discontinue  the  boot  and  shoe  trade  of  Cooley,  Wads- 
"  worth  &  Co.,  and  that  all  profits  and  losses  to  be  equally 
"  shared  between  Henderson  of  one  .part  and  Cooley  and  him- 
"  self  of  the  other  part;  and  that  Henderson  was  content  to 
"  subscribe  and  pay  three-fourths  of  the  capital  stock  of  this 
"firm,  and  do  all  the  work  of  the  firm,  and  divide  the  profits 
"  equally  with  Cooley  and  himself,  because  of  tint  value  of 
"  complainant's-credit  and  influence,  and  because  such  credit 
"  and  influence  were  worth  more  to  the  said  firm  than  the  scr- 
"  vices  and  capital  of  Henderson  ;  and  that  Farwell  was  not  a 
"  partner  in  this  firm  and  had  no  interest  therein."  On  page  8 
of  bill,  he  further  alleges  "that  he  fully  paid  up  the  amount  of 


18 

"  his  said  capital  stock  in  the  firm  of  C.  N.  Henderson  &  Co., 
"  and  that  he  performed  all  other  duties ;  and  that  mainly 
"  owing  to  his  credit  and  influence,  the  said  firms  of  Cooley  > 
"  Wads  worth  &  Co.,  and  C.  N.  Henderson  &  Co.,  transacted 
"  a  large  and  profitable  business,  and  that  Cooley,  Wadsworth 
"  &  Co.  were  thereby  enabled  to  commence  with  and  maintain 
"  the  position  of  the  largest  wholesale  dry  goods  house  in  the 
"  city  of  Chicago,  and  thereby  also  Cooley,  Farwell  &  Co. 
"  were  enabled  to  amass  a  considerable  fortune." 

The  defendants  deny  this  allegation,  and  affirm  on  the  con- 
trary, that  a  copai'tnership  was  formed  between  Charles  N. 
Henderson,  of  one  part,  and  the  firm  of  Cooley,  Wadsworth 
&  Co.,  of  the  other  part,  under  the  firm  name  of  C.  N.  Hen- 
derson &  Co.,  to  carry  on  the  wholesale  boot  and  shoe  trade 
in  Chicago,  at  about  the  time  mentioned  in  said  allegation, 
with  a  capital  of  $20,000,  and  that  said  Henderson  paid  into 
the  same  the  sum  of  $15,000  as  his  share,  and  the  said  firm  of 
Cooley,  Wadsworth  &  Co.,  the  sum  of  $5,000  as  its  share ; 
and  that  Henderson  had  a  half  interest  in  the  profits  and  losses, 
and  the  said  firm  of  Cooley,  Wadsworth  &  Co.  the  other  half 
interest  in  profits  and  losses ;  and  that  it  was  the  credit  and 
influence  of  the  said  firm  of  Cooley,  Wadsworth  &  Co.,  and 
its  relinquishment  of  that  branch  of  their  business  that  induced 
the  said  Henderson  to  consent  to  the  said  apparent  inequality 
of  terms. 

Here  we  find  an  issue  wide  apart,  and  the  truth  or  falsity  of 
the  several  allegations  is  with  one  side  or  the  other;  both  can- 
not be  true.  Where  does  the  evidence  place  the  truth  ? 

Mr.  Spink  testifies  on  page  144-5,  inty  129,  "  that  he  had 
examined  the  stock  account  of  the  firm  of  C.  N.  Henderson  *fc 
Co.,  on  the  books  of  that  firm.  They  (the  said  books)  show 
that  the  firm  (C.  N.  Henderson  &  Co.,)  was  composed  of 
C.  N.  Henderson  and  Cooley,  Wadsworth  &  Co.;  and  that  the 
firm  seems  to  have  been  formed  on  the  18th  of  August,  1851, 
and  that  Henderson  paid  in  the  sum  of  $15,000,  and  Cooley, 
Wadswortli  &  Co.  the  sum  of  $5,000,  making  a  capital  stock 
of  $20,000.  That  the  profits  ($56,042.42)  were  divided  on  the 
1st  of  March,  1852,  and  on  the  1st  of  February,  1853,  and  on 
the  1st  of  February,  1854,  and  on  the  1st  of  January,  1855, 
and  on  the  30th  of  June,  1855,  equally  between  C.  N.  Hender- 
son and  Cooley,  Wadsworth  &  Co.  On  the  date  last  afore- 


said,  the  credit  balance  of  the  stock  accounts  of  the   members 

of  the  said  firm  was  as  follows  : 

C.  N.  Henderson,  $13,163.59 

Less  private  acc't,  •  3,133.69 

810,029.90 

That  of  Cooley,  Wadsworth  &  Co.,  $34,188.82 

On  the  1st  day   of  March,  1859,  C.  N. 

Henderson's  credit  balance  was     -       $8,949.10 
Cooley,  Wadsworth  &  Co.,  19,244.10 

$28,193.90 

On  the  23d  of  March,  1856,  a  charge  of  $2,161.59  was  made 

to  profit  and  loss,  and  half  of  that  amount  was  charged  to  each 
partner,  that  is,  one-half  to  C.  N.  Henderson,  and  one-half  to 
the  firm  of  Cooley,  Wadsworth  &  Co. 

On  the  30th  of  March,  1859,  the  sum  of  $13,000  for  notes 
and  accounts  is  charged  to  Cooley,  Wadsworth  &  Co.  in  stock 
account,  reducing  their  balance  to  $6,244.10. 

Inty  130.  He  says,  "that  previous  to  the  said  charge  of 
$13,000  to  the  account  of  Cooley,  Wadsworth  &  Co.,  there 
would  be  due  from  Henderson  to  the  firm  of  Cooley,  Wads- 
worth  &  Co.,  the  sum  of  $5,147.50,  without  computing  any 
interest  on  either  of  the  accounts  after  June  30,  1855  ;  had  in- 
terest been  computed,  the  amoifht  to  be  paid  by  Henderson  to 
equalize  the  accounts  would  have  been  greater." 

Inty  131,  page  146.  He  testifies  "that  the  said  entry  of 
-si :>,000,  which  he  finds  in  the  books  in  the  stock*  account  of 
Cooley,  Wadsworth  &  Co.,  in  the  ledger  only,  and  it  appears 
that  this  charge  was  taken  from  page  167  of  the  journal,  and 
this  journal  page  is  cut  out  from  the  journal." 

On  page  147,  inty  133,  he  testifies  "  that  the  signature  to  the 
paper  which  I  append,  marked  'Exhibit  No.  13,  of  E.  S. 
Wadsworth  for  C.  N.  Henderson  &  Co.'  is  in  the  hand  writing 
of  Elisha  S.  Wadsworth.  S:ii«l  exhibit  No.  13,  is  as  follows  : 
SIMEOX  FARAVELL,  Trustee  : 

You  will  release  the  mortgage  from  James  M.  Kidd  to  you, 
for  our  benefit. 

COOLEY,  WADSWORTH  &  CO., 
•           E.  S.  WADSWORTH  for 

C.  N.  HENDERSON  &  CO. 

CHICAGO,  January  29, 1863." 


20 

/ 

(See,  also,  exhibit  No.  14,  on  page  224,  and  ihty  192,  page 
221.) 

Henry  T.  Helm,  on  page  229,  inty  3-4-5,  testifies,  "  to  the 
application  of  Cooley  for  letters  of  administration  upon  the 
estate  of  C.  N.  Henderson,  deceased,  by  C.  M.  Hawley,  his 
attorney,  which  petition  leaves  the  name  of  Farwell  erased, 
wherein  it  was  written  as  a  partner  of  the  firm  of  C.  N.  II.  & 
Co.  See  '  exhibit  A,'  to  Helm's  deposition ;  page  237,  inty  1-2 
-3.  Mr.  Farwell  was  present  on  one  occasion  when  the  matter 
came  up.  His  appearance  was  that  of  an  interested  party ; 
they  consulted  together,  but  F  did  not  hear  what  was  said. 

On  page  232,  inty  4,  he  testifies,  "  I  only  know  who  com- 
posed the  firm  of  C.  N.  Henderson  &  Co.  from  information 
from  Charles  N.  Henderson.  Mr.  Henderson  placed  in  my 
hands  two  claims  against  Faucher  &  Halleck,  to  be  sued.  He 
gave  me  on  a  piece  of  paper  the  names  of  the  members  of  the 
firm  of  C.  N.  Henderson  &  Co.,  and  those  names  were  Charles 
N.  Henderson,  Francis  B.  Cooley,  Elisha  S.  Wadsworth  and 
John  V.  Farwell.  Subsequently  other  claims  were  placed  in 
my  hands  by  him,  which  I  sued  in  the  names  of  those  four 
persons.  I  bought  the  interest  of  Henderson  in  one  of  the 
judgments  I  obtained,  and  he  (Henderson)  assigned  the  Sher- 
iff's certificate  of  sale  of  land^and  sent  me  to  Cooley,  Wads- 
worth  and  Farwell  for  their  signatures  thereto,  and  it  was 
signed  by  Cooley  and  Farwell — Wadsworth  not  being  present, 
Farwell  signed  his  name  for  him.  Mr.  Henderson  spoke  more 
frequently  of  Farwell's  being  a  partner  than  of  the  others,  and 
especially  at  the  close  of  the  firm,  as  Henderson,  at  the  time 
of  the  dissolution,  negotiated  with  Farwell." 

On  page  235,  inty  7-8-9,  he  testifies,  "that  the  files  shown 
him  appear  to  be  the  files  in  the  case  of  C.  N.  Henderson  and 
others  against  Algernon  S.  Vail,  commenced  on  the  22d  day 
of  December,  1853,  in  the  Cook  County  Court  of  Common 
Pleas,  and  they  consist  of  a  proecipe,  summons,  declaration, 
account,  execution  and  affidavit  of  John  V.  Farwell.  The  At- 
torneys who  commenced  the  suit  and  filed  the  papers  in  behalf 
of  the  plaintiffs,  is  John  Woodbridge,  Jr.,  and  Mr.  Wood- 
bridge  informs  me  that  the  same  are  in  his  l)#nd-writing,  and, 
the  plaintiffs  are  Charles  N.  Henderson,  Francis  B.  Cooley, 
Elisha  S.  Wadsworth  and  John  V.  Farwell,  the  firm  of  C.  N. 
Henderson  &  Co." 


21 

Edmund  Burk,  complainant's  witness,  on  his  direct  exam- 
ination on  page  245,  inty  11,  testifies,  "  that  since  the  death  of 
C.  N.  Henderson,  the  firm  of  C.  N.  Henderson  &  Co.  had  real- 
ized on  its  assets  $58.00,  and  which  was  paid  to  Cooley,  Far- 
well  &  Co.  for  Cooley,  Wadsworth  &  Co.,  March  1,  1859, 
and  the  voucher  received  therefor  is  as  follows  : 

"CHICAGO,  March  1,  1859. 

"  Received  of  C.  N.  Henderson  &  Co.,  by  the  hand  of 

"  Fifty-eight  dollars,  to  apply  on  stock  account. 

"COOLEY,  FARWELL  &  CO.,  for 

"  COOLEY,  WADSWORTH  &  co., 

«  LEITER." 

Leiter  was  the  book-keeper  for  C.  F.  &  Co. 

See  also  Exhibit  C.  to  Burke,  page  247,  inty  21,  by  which 
the  firm  of  Cooley,  Wadsworth  &  Co.,  are  recognized  again 
by  Wadsworth,  as  the  partner  of  Henderson  in  the  firm  of 
C.  N.  Henderson  &  Co.  (It  will  be  remembered  that  Mr. 
Burk  testified  that  he  was  the  agent  of  Wadsworth  to  collect 
the  assets  of  the  firm  of  C.  N.  H.  &  Co.) 

On  page  257-8,  inty  56,  Mr.  Burk  testifies,  "that  in  the  stock 
account,  on  the  first  page  of  the  ledger  of  the  firm  of  C.  N. 
Henderson  &  Co.,  the  entries  are  as  follows  : 
Stock  account,  October  1,  1851,  credit  by  sundries,  $20,000.00' 
March  1,  1851,  credit  by  profit  and  loss,  -       3,585.56 

Inty  58,  he  testifies  "  that  the  original  entry  of  this  account 
is  as  follows : 

CHICAGO,  October  1,  1851. 

Sundries  to  stock  account : 

C.  N.  Henderson  is  to  pay    -  $15,000 

Cooley,  Wadsworth  <fc  Co.,  is  to  pay    '  5,000 

$20,000 

Cross-inty  59,  he  testifies  that  on  pages  869-70  of  ledger  of 
C.  N.  H.  &  Co.,  the  entries  are  as  follows  : 

Page  369  is  headed,  C.  N.  Henderson,  stock. 

Page  370  is  headed,  Cooley,  Wadsworth  &  Co.,  stock." 

On  page  280,  inty  32,  33,  34,  35,  36,  37,  38,  he  testifies,  "  I 
have  been  present  at  two  interviews  between  Henderson  and 
Farjyell,  from  October,  1856,  to  January,  1859,  in  the  office  of 
C.  N.  Henderson  &  Co.  Farwell  asked  how  Henderson  got 
along  collecting  said  assets,  and  other  general  inquiries  as  to 
them ;  to  which  Henderson  replied,  very  slowly,  *  and  you  had 


better  take  charge  of  them.'  Mr.  Farwell  said  'they  had  bet- 
ter remain.'  I  recollect  of  seeing  Farwell  examine  the  books 
of  C.  N.  H.  &  Co.,  and  the  pocket-book  containing  the  assets 
of  C.  N.  II.  &  Co." 

On  page  283,  cross.  174,  he  testifies,  "that  the'  entries  of 
the  stock  in  the  journal  and  ledger  correspond,  and  they  are 
posted,  and  read  as  follows  : 

"CHICAGO,  October  1,  1851. 

"  Sundries  to  stock: 

"  C.  N.  Henderson  is  to  pay%  $15,000 

"  Cooley,  Wadsworth  &  Co.,  is  to  pay  -         -    5,000 

"Total  -    .  820,000 

"  I  don't  know  whose  hand-writing  the  journal  entries  are 
"  in  ;  they  do  not  appear  to  be  Mr.  Farwell' s." 

On  page  284,  cross.  175,  he  testifies,  "that  the  books  of  ac- 
count of  C.  N.  Henderson  &  Co.,  show  that  C.  N.  Henderson 
paid  the  $15,000,  and  that  Cooley,  Wadsworth  &  Co.  paid  the 
said  $5,000  into  the  capital  stock  of  C.  K  Henderson  &  Co." 

On  page  289,  cross.  200,  207,  208,  he  testifies, .  "  that  on 
page  370  of  the  ledger,  and  opposite  the  posting  of  the  said 
$13,000,  (to  the  account  of  C.  W.  &  Co.)  there  is  reference  to 
page  1G7,  and  I  find  that  the  said  page  167  to  have  been  cut 
out,  and  that  my  only  explanation  for  its  being  cut  out,  if  it 
was  done  by  me,  is,  that  I  might  have  made  an  incorrect  entry 
thereon." 

To  the  cross-inty  208,  "  Why  did  you  not  erase  an  improper 
entry  (if  you  made  one,)  and  then  make  the  proper  entry,  in- 
stead of  cutting  out  the  leaf?'  He  replies,  "  I  don't  know 
that  I  did  cut  it  out ;  if  I  did,  it  contained  an  entry  made  with- 
out instruction." 

Cross-inty  209,  he  says,  "  If  I  cut  it  out,  it  was  done  at  my 
own  option,  as  I  cannot  remember  ever  having  any  conversa- 
tion with  any  one  relative  to  that  book  previous  to  the  com- 
mencement of  this  deposition." 

In  answer  to  cross-inty  210,  on  page  290,  "  How  did  you 
know  that  this  was  a  wrong  entry  ?"  he  replies,  "  If  I  made 
an  entry  on  that  book,  I  did  what  I  had  no  business  to  do, 
and  that  would  have  been  a  sufficient  reason  for  me  to  cut  it 
out."  Cross-int.  211.  "  It  has  always  been  my  custom  so  to 
do — (that  is,  cut  out  leaves  if  a  wrong  entry  is  made  therein.") 
Cross-int.  212,  "  If  I  cut  it  out,  I  did  it,  I  presume,  at  or  about 


23 

the  time  the  entry  was  made."  Cross-int.  213,  "  I  don't  know 
what  the  entry  was."  Cross-int.  215,  "  I  do  not  recollect  of 
ever  cutting  a  leaf  out  of  any  ledger,  journal  or  day-book." 
Cross-int.  217,  "I  don't  know  who  cut  it  out."  Cross-int.  218, 
"  I  have  no  recollection  as  to  the*leaf,  whatsoever."  Cross- 
hit.  219.  "  This  forenoon,  I  believe,  was  my  first  knowledge  of 
its  being  cut  out."  Cross-int.  220,  "  The  said  entry  of  $13,000, 
is  the  only  entry  of  that  amount ;  the  figures  on  the  left  of  this 
charge  (to  wit,  page  167,)  are  mine.  Cross-int.  221,  "  I  should 
not  have  been  likely  to  have  made  said  reference  to  the  journal 
entry  if  there  had  not  been  one.V 

C.  M.  Henderson,  complainant's  witness.  On  page  304,  I. 
8,  introduces  the  articles  of  dissolution,  of  the  firm  of  C.  X. 
Henderson  &  Co.,  which  he  appends  and  marks  "  Exhibit  A," 
which  is  on  page  351,  and  is  made  by  C.  N.  Henderson,  of  one 
part,  and  Cooley,  Wadsworth  &  Co.,  of  the  other.  (To  it 
are  attached  four  seals  ;  but  signed  by  Cooley,  Wadsworth 
and  Henderson.  Mr.  Farwell  is  made  a  party  to  it,  under  the 
name  of  C.,  W.  &  Co. ;  but  by  mistake  he  omits  to  sign  it. 
The  complainant,  by  introducing  this  article,  has  not  thereby 
proved  it  to  have  been  adopted.) 

On  pages  1'and  2  of  Appendix  to  Printed  Evidence,  and 
attached  to  the  deposition  of  James  C.  Aiken,  marked  "  Ex- 
hibit No.  2,"  is  contained  the  original  articles  of  said  dissolu- 
tion, and  which  is  signed  by  all  the  partners  of  that  firm,  to 
wit :  C.  N.  Henderson,  F.  B.  Cooley,  Elisha  S.  Wadsworth, 
and  John  V.  Farwell.  The  omission  of  the  name  of  Farwell 
to  the  said  "Exhibit  A,"  to  C.  M.  Henderson's  deposition 
(when  a  seal  was  prepared  in  the  proper  place  for  his  signa- 
ture), is  evidently  a  mistake  or  an  oversight.  It  may  have 
been,  and  probably  was  designed  by  the  partners  as  a  duplicate 
copy  of  the  original,  and  the  signature  of  Farwell  inadvert- 
antly omitted.  It  will  be  noticed  that  the  printed  copy  of  this 
"  Exhibit  A,"  on  page  351  of  printed  evidence,  omits  to  copy 
the  seal  prepared  for  Farwell,  and  which  is  contained  on  the 
said  exhibit  itself. 

On  page   305,  I.  16,  Mr.  Henderson  testifies  that,  "  C.  N. 
Henderson,  previous  to  his  death,  held  interviews  with  Mr.  ' 
Farwell. 

"  In  relation  to  the  assets  of  C.  1ST.  Henderson  &  Co.,  during 
the  time  between  the  dissolution  of  said  firm  and  Henderson's 


24 

death  (22),  I  have  seen  Farwell  and  Henderson  examine  the 
assets  of  C.  N.  H.  &  Co.  together,  at  different  times."  On  page 
305,  I.  40,  he  testifies  "  That  Cooley  and  Wadsworth  applied 
for  letters  of  administration  upon  the  estate  of  Henderson. 
Mr.  Helm  also  applied  and  was  appointed.  Cooley  and  Wads- 
worth  appealed."  (The  witness  is  in  error,  for  the  application 
is  set  forth  in  "Exhibit  A,"  of  Helm's  deposition,  on  page  237, 
shows  that  Mr.  Cooley  alone,  and  not  Cooley  and  Wadsworth, 
applied  for  administration,  and  the  appeal  from  the  decision 
of  the  Probate  Court  was  by  Cooley.)  The  witness  then  pro- 
ceeds, and  says : 

"  On  the  day  of  trial,  Mr.  Wadsworth  desired  him  (witness) 
to  talk  with  Cooley,  for  the  purpose  of  making  a  settlement, 
and  at  his  request  I  called  on  Cooley.  Mr.  Cooley  wanted  me 
to  purchase  the  assets  (of  C.  N.  H.  &  Co.)  which  I  refused  to 
do.  I  then  went  to  Rucker's  office,  and  Mr.  Wadsworth  came 
in  and  said  to  me  that  the  matter  must  be  settled,  and  if  not 
in  any  other  way,  he  (Wadsworth)  would  purchase  the  interest 
of  Cooley,  Wadsworth  &  Co.,  and  that  then  he  (Wadsworth) 
would  arbitrate  the  matter  with  the  estate."  I.  41,  "The 
reason  Wadsworth  assigned  why  the  matter  must  be  settled, 
was,  that  unless  it  was  settled,  he  (WadswortV)  should  have 
to  go  out  of  one  concern  or  the  other,  meaning  the  concerns 
of  Cooley,  Wadsworth  &  Co.,  or  C.  N.  Henderson  &  Co." 
In  answer  to  Inty's  43,  44,  45,  46,  47,  48,  49,  50,  51,  52,  53,  54, 
pp.  310,  311,  the  witness  testifies,  "  That  the  arbitration  spoken 
of  by  Wadsworth  took  place  soon  after  the  circumstances 
above  related.  The  arbitrators  were  chosen  by  Mr.  Wads- 
worth  selecting  one ;  I  selected  one,  and  the  third  was  selected 
by  the  estate,  or  we  agreed  upon  him."  To  the  48th  I. — "  Who 
represented  Cooley  &  Wadsworth's  interest?" — he  replies, 
"  Farwell."  The  arbitration  was  had.  "A  paper  was  present- 
ed by  Farwell,  which  Farwell  showed  me  as  the  accounts  of 
Cooley,  Wadsworth  &  Henderson.  The  award  of  arbitrators 
is  contained  in  "  Exhibit  D  "  to  his  deposition  (on  page  353). 

On  page  331,  cross-int.  99,  he  testifies,  "That  he  means  by 
his  answer  to  the  48th  direct,  that  Mr.  Farwell,  before  the 
arbitrators,  represented  the  interest  belonging  to  Wadsworth, 
and  in  behalf  of  Wadsworth.  The  stock  account  of  C.  N.  H. 
&  Co.  on  its  books  were  opened  in  the  names  of  C.  N.  Hender- 
son, and  Cooley,  Wadsworth  &  Co.,  by  D.  Hobart  Hills,  the 


25 

clerk  for  C.  N.  H.  &  Co."  On  page  342,  cross-hit.  132,  he 
says,  "  I  mean,  in  answer  to  the  77  direct  int.,  that  at  that 
time  (of  the  meeting  of  the  arbitrators)  Mr.  Farwell  claimed 
that  Wadsworth  had  such  a  claim ;  Mr.  Wadsworth  standing 
in  relation  to  the  estate  in  the  place  of  Cooley,  Wadsworth  & 
Co.,  or  as  successor  to  the  rights  of  Cooley  &  Wadsworth." 
On  page  343,  cross-int.  135,  "  I  believe  in  most  instances,  in 
my  answers,  1  have  considered  Cooley ',  Wadsworth  &  Co., 
and  Cooley  &  Wadsworth,  as  synonymous  terms."  Cross-int. 
136.  "  The  book  of  accounts  of  the  firm  of  C.  N.  H.  &  Co., 
do  not  contain  any  account  against  Cooley  &  Wadsworth,  and 
I  find  no  such  firm  as  C.  &  W."  Cross-int.  137.  "  The  indi- 
vidual stock  accounts  of  the  firm  of  C.  N.  II.  &  Co.  are  kept 
in  the  name  of  C.  N.  Henderson,  and  that  of  Cooley,  Wads- 
worth  &  Co."  Cross-int.  138.  "  I  think  all  suits  commenced 
by  the  firm  of  C.  N.  H.  &  Co.,  were  commenced  in  the  name 
of  Henderson,  Cooley,  Wadsworth  &  Farwell,  plaintiffs." 
On  page  836,  Int.  72,  he  says,  "  That  C.  N.  H.  &  Co.  derived 
their  original  business  from  the  firm  of  Cooley,  Wadsworth  & 
Co."  Page  334,  cross-int.  100.  "  Mr.  Henderson  (meaning 
Charles  N.  Henderson)  treated  Farwell  as  partner  in  the  firm 
of  C.  N.  H.  &  Co."  In  reply  to  cross. -int.  109,  he  testifies, 
"That  the  firm  of  Cooley,  Wadsworth  &  Co.,  that  was  in 
partnership  with  Henderson,  was  composed  of  Cooley,  Wads- 
worth  &  Farwell."  On  pages  683  to  688  he  testifies,  "  That 
he  caused,  some  time  in  1855,  two  suits  to  be  commenced  by 
C.  N.  Henderson  &  Co.,  against  its  debtors  ;  and  that  he  made 
affidavit,  then  in  said  cause,  that  the  firm  of  C.  N.  H.  &  Co. 
was  composed  of  Cooley,  Wadsworth,  Farwell  &  Henderson ; 
and  that  C.  N.  Henderson  made  and  filed  two  similar  affidavits 
to  the  same  effect." 

D.  Hobert  Hills,  on  page  672,  testifies,  that  "he  was  acqaint- 
ed  with  the  firm  of  C.  N.  H.  &  Co.,  from  some  time  in  the 
summer  of  1851  to  1855,  and  that  the  partners  were  Henderson 
&  C.,  W.  &  Co.  I  was  salesman,  and  kept  the  books.  Mr. 
Henderson  informed  me  who  the  partners  were." 

James  S.  Murray,  on  629-30,  testifies,  "  That  he  has  ex- 
amined the  files  of  the  Circuit  Court,  and  find  the  firm  of  C. 
N.  H.  &  Co.  have  commenced  thirteen  suits  in  that  Court,  in 
the  name  of  Cooley,  Wadsworth,  Farwell  &  Henderson  as 
plaintiffs,  and  as  members  of  that  firm,  and  that  four  of  said 


suits  were  commenced  by  Jono  Woodbridge,  Jr.,  as  one  of  the 3 
attorneys  for  plaintiffs." 

Walter  Kimball,  on  page  631-2-3  and  4,  testifies,  "  that  he 
"  was  clerk  of  the  Cook  Co.  Court  of  Com.  Pleas,  and  the 
"  Superior  Court  of  Chicago  from  April,  1849,  to  1st  December, 
"  1861,  and  that  he  has  examined  the  files  of  said  Courts  and 
"  finds  that  within  that  time  the  firm  of  C.  N.  H.  &  Co.  com- 
"menced  20  suits  in  said -courts,  wherein  they  allege  by 
"  declaration  and  in  some 'cases  by  affidavit  that  the  said  firm 
"  was  made  up  of  Henderson,  Cooley,  Wadsworth  and  Far- 
"  well,  and  that  many  of  the  cases  are  commenced  by  Jno. 
"  Woodbridge,  jr.,  as  their  attorney,  and  that  the  affidavit  in 
"  the  Culton'  suit  of  C.  M.  Henderson  was  drawn  by  Wood- 
"  bridge." 

Alpha  Rockwell,  on  page  635-6  testifies,  "that  he  was  the 
"  bookkeeper  of  the  firm  of  C.  N.  H.  &  Co.,  from  and  during 
"the  year  1854  and  portions  of  the  years  of  1853  and  1855, 
"  and  that  the  members  of  that  firm  were,  Henderson,  Cooley? 
"  Wadsworth  and  Farwell,  and  that  he  knows  that  Farwell 
"  was  a  member  of  it  from  the  fact,  that  he  was  a  member  of 
"  the  firm  of  C.,  W.  &  Co.,  and  from  the  fact  that  he  was 
"  advised  with  by  Henderson." 

Joseph  S.  Miles,  an  old  clerk  of  C.,  W.  &  Co.,  from  1st 
March,  1851,  to  1857,  on  page  658-9,  int'y  14-17,  testifies, 
"  that  he  knew  the  firm  of  C.  N.  H.  &  Co.,  and  believes  that 
"  the  partners  to  have  been,  Henderson,  Cooley,  Wadsworth 
"  and  Farwell,  and  the  grounds  of  his  belief  were,  he  was  the 
"clerk  for  C.,  W.  &  Co.,  and  knew  who  composed  that  firm, 
"  and  he  had  a  general  knowledge  of  their  business  in  both 
"houses  (to-wit  C.,  W.  &  Co.  and  C.  N.  3.  &  Co.),  and  I 
"  have  the  same  reason  for  believing  that  they  were  members 
"  of  C.  N.  H.  &  Co.,  that  I  have  that  there  was  such  a  firm  as 
"  C.,  W.  &  Co.  Their  intercourse  was  that  of  partners." 

Charles  G.  Cooley,  on  page  515  and  516,  int'y  7,  testifies, 
"  that  he  received  of  Horace  C.  Gillette,  the  administrator,  a 
"  paper  of  which  the  following  is  a  true  copy : 

"  CHICAGO,  Nov.  8th,  1859. 

"  Received  of  Horace  C.  Gillette,  Administrator  of  the 
"  Estate  of  C.  N.  Henderson,  nine  hundred  and  thirty-nine  dol' 
"  lars  and  fifteen  cents,  which  is  in  full  of  settlement  and  pur- 


27 

•      .     . 

"  chase  of  the  assets  of  the  firm  of  C.  N.  Henderson  &  Co. , 
"  which  expired  in  1855,  being'  in  full  of  all  demands  what- 
"  soever. 

COOLEY,  WADSWORTH  &  Co." 

Int'y  8.,  "I  delivered  the  original  to  Mr.  Woodbridge,  attor- 

"  ney  for  Wadsworth.     I  did  so  because  I  did  not  deem  the 

"  receipt  sufficient.    Mr.  Wadsworth  said  that  he  would  consult 

"  with  his  attorney  about  giving  me  another  in  place  of  it. 

"  Mr.  Woodbridge  called  upon  me  for  the  paper.    I  explained  to 

"  him  my  objection  to  the  form  of  the  receipt,  and  at  his  request 

"  I  gave  him  the  receipt,  and  he  said  he  would  procure  a  proper 

"  one  from  Wadsworth,  and  said  he  would  prefer  to  give  some 

"other;   this  was  in  April,  1864,  and  prior  to  the   15th.     I 

"  wanted  a  receipt,  refering  more  particularly  to  the  partner- 

"  ship  giving  the  names  composing  it,  when  it  commenced  and 

"  terminated  and  how  the  settlement  was  and  when  it  was 

"  made  (int'y  12).     I  went  with  Wadsworth  to  Woodbridge's 

"  office,  when  he  said  he  wished  to  consult  with  his  attorney 

"  about   changing  the   receipt.     Wadsworth   said   at  Wood- 

"  bridge's   office,   that  he   would    comply   with    my  request 

"  (change  the  receipt)  but  did  not  do  it  that  day.     I  submitted 

"  a  form  of  the  receipt  which  I  requested  them  to  give.     Mr. 

"  Wadsworth  or  Woodbridge  objected  to  s6me  features  of  my 

"  draft  and  suggested  that  it  might  be  improved."     In  answer 

to  13,  he  continues,  "uthat  they  made  no  material  objection  to 

"  changing  the  form  of  the  receipt  except  as  to  the  signature. 

"  I  supposed  the  signature  to  the  original  receipt  was  correct. 

"  They  said  it  was  not  and  that  it  ought  not  to  have  been 

"  signed  so  (int'y  20) ;  the  draft  of  another  receipt  was  drawn 

"  up  by  Woodbridge  and  it  was  afterwards  presented  to  me 

"  in  the  handwriting  of  Wadsworth  (irit'y  22).     The  original 

"  receipt  was  in  the  handwriting  of  Wadsworth  and  the  last 

"  time  I  saw  it,  it  was  at  Mr.  Woodbrige's  office  (inty  24).     I 

"  said  when  he  handed  me  the  substituted  receipt,  that  I  sup- 

"  pose  that  all  of  the  firm  of  C.,  W.  &  Co.  were  interested,  in 

"  the  firm  of  C.  N.  H.  &  Co.     He  said  they  were  not,  but  only 

"  himself  and  Cooley,  aud  that  the  estate  would  be  fully  pro- 

"  tected  by  a  receipt  from  Cooley  &  Wadsworth.     On  this 

"  assurance  I  received.the  receipt  signed  by  Mr.  Wadsworth, 

"  as  assignee  of  the  interest  of  Cpoley  &  Wadsworth,  and  he 

"  then  said  to  me  *hat  he  copied  it  from  a  Draft  made  by 

"  Woodbridge."     Int'y  25,  page  520  reads  as  follows  : 


28 
» 

"  Received  this  8th  day  of  November,  1859,  of  Horace  C. 
"  Gillette,  administrator  of  the  estate  of  C.  N.  Henderson, 
"  deceased,  nine  hundred  and  thirty-nine  ^  dollars,  in  full  of 
"  award  of  Albert  Kieth,  Wm.  E.  Doggett,  and  James  Mc- 
"  Kindley,  arbitrators  appointed  to  adjust  the  accounts  of  the 
"  late  firm  C.  N.  Henderson  &  Co.,  to  find  the  amount  due 
"  Cooley  &  Wadsworth  from  the  estate  of  C.  N.  Henderson 
"  upon  settlement  of  the  affairs  of  said  firm.  I  accept  the 
"  aforesaid  amount  in  full  of  all  claims  upon  said  estate  on 
"  account  of  said  firm.  The  said  firm  of  C.  N.  Henderson  & 
"  Co.,  consisting  of  C.  N.  Henderson,  Francis  B.  Cooley,  and 
"  Elisha  S.  Wadsworth,  which  commenced,  A.  D.,  1851,  and 
"  expired  in  1855." 

"  E.  S.  WADSWORTH,  ASSIGNEE 
"  of  the  interest  of  Cooley  &  Wadsworth." 

On  page  521,  int'y  31,  he  says,  "  John  V.  Farwell  caUed  on 
me  from  the  10th  to  15th  of  April,  1864,  while  depositions  were 
being  taken  in  this  case  in  Henderson's  store  for  the  said  ori- 
ginal receipt  or  a  copy  of  it,  I  then  did  not  have  it.  He  called 
the  day  after,  and  in  the  time  I  had  procured  the  substituted 
receipt.  Int'y  32.  When  Farwell  first  called,  I  suppose 
Woodbridge  had  the  original  receipt.  I  gave  Farwell  a  copy 
of  the  substituted  receipt." 

Horace  C.  Gillette,  administrator,  etc.,  on  page  525,  int'y  15, 
testifies,  "  I  paid  Elisha  S.  Wadsworth  a  claim  he  presented 
and  filed  in  the  Probate  Court,  as  the  amount  due  on  the 
award  of  the  arbitrators,  appointed,  as  I  understood,  to  decide 
what  was  due  from  C.  N.  Henderson  &  Co.,  to  Elisha  S. 
Wadsworth.  I  paid  the  same  to  him  by  order  of  Court." 

Page  525,  Int.  16,  "I  paid  $939.15   in  November,  1859." 

Page  526,  he  says,  ".  I  looked  at  the  papers  (filed  in  Probate 
Court)  and  found  a  bill  presented  by  Elisha  S.  Wadsworth,  or 
the  firm  of  Cooley,  Wadsworth  &  Co.,  sworn  to  by  Mr.  Wads- 
worth.  (This  was  the  claim  he  paid.)  This  was  done  within 
the  last  month,  (March,  1864.) 

Int.  22,  he  says,  "I  have  examined  the  records  of  said  court 
and  find,  and  herewith  append  true  copies  of  the  same,  as 
follows : 


29 

'  Estate  of  C.  N.  Henderson. 

'1859.  To  Cooley,  Wadsworth  &  Co., 

'  March  31.  To  $903.03. 

'  The  above  $903.03  is  the  balance  as  appears  from  papers  per 
'  arbitration.  BUKKE. 

'  Received  of  Horace  C.  Gillette  the  sum  of  nine  hundred 
'  thirty-nine  dollars  and  fifteen  cents,  in  full  of  judgment  vs.  the 
'  estate  of  C.  N.  Henderson. 

'Nov.  8,  1859.  E.  S.  WADSWORTH.'" 

On  page  527,  Int.  23-24,  he  says  :  "  I  received  of  Wads- 
worth,  as  administrator,  a  receipt  for  the  said  sum  of  $939.15, 
and  gave  it  to  Charles  G.  Cooley ;  I  gave  it  to  him  in  April 
last,  (1864.)"  Int.  26,  "  This  receipt  was  exchanged  by  Mr. 
C.  G.  Cooley ;  at  the  time  of  change  of  the  receipt  I  might 
have  seen  the  original."  Page  928,  Int.  28,  "  I  was  present 
when  Wadsworth  and  Cooley  went  to  make  the  change ;  when 
Wadsworth  gave  me  the  original  receipt,  he  took  the  pen  and 
hesitated,  and  said  he  did  not  know  how  to  sign  it,  but  if  in- 
correct he  would  correct  it  for  me."  Int.  29,  "  About  two 
weeks  after  I  gave  the  receipt  to  C.  G.  Cooley,  I,  with  Cooley, 
went  to  Wadsworth,  and  he  refused  to  alter  it  (the  original 
receipt,)  until  he  consulted  with  Woodbridge,  (notice  this  fact ;) 
afterwards  he  brought  us  the  receipt  (substituted  receipt.)" 
Page  529,  Int.  34,  "  The  substituted  receipt  was  agreed  upon 
at  the  time  of  this  conversation  with  Woodbridge." 

As  to  the  proof  of  the  truth  or  falsity  of  the  other  part  of 
the  allegation  above  referred  to,  to  wit :  "  And  that  mainly 
owing  to  Wadsworth's  credit  and  influence,  the  said  firms  of 
C.  W.  &  Co.,  and  C.  N.  H.  &  Co.,  transacted  a  large  and  profit- 
able business,  and  that  C.  W.  &  Co.  thereby  were  enabled  to 
commence  with  and  maintain  the  position  of  the  largest  whole- 
sale house  in  Chicago,  and  Cooley,  Farwell  &  Co.  were  enabled 
to  amass  a  considerable  fortune."  See  ante-pages  11  to  15 
inclusive  for  the  evidence. 

Which  is  sustained  by  the  evidence,  the  said  allegation  in 
complainant's  bill,  or  the  answer  thereto  by  the  defendants  ? 

First — To  sustain  his  said  allegation,  that  Farwell  is  not  a 
partner  in  the  firm  of  C.  N.  H.  &  Co.,  he  introduced  the  said 
"exhibit  A"  to  Henderson's  deposition  on  page  351,  with 
FarwelFs  name  omitted  as  aforesaid.  Why  did  he  not  intro- 


30 

duce  the  original  agreement  of  dissolution,  signed  by  all  the 
partners?  He  knew  of  its  existence,  and  he  knew  thatFarwell 
was  a  partner.  The  orginal  agreement  contained  the  signa- 
tures of  the  said  four  partners,  and  this  would  defeat  his  scheme 
of  defrauding  Farwell  in  the  matter  of  the  profits  of  this  firm. 
It  was  an  evil  hour  when  Wadsworth  seized  upon  this  "  ex- 
hibit A  "  to  Henderson's  deposition,  as  a  means  to  take  from 
Mr.  Farwell  his  profits  in  said  firm. 

Without  reference  to  said  "  exhibit  No.  2,"  to  Mr.  Aikeh's 
deposition,  on  page  1  of  appendix  to  printed  evidence,  the  said 
"  exhibit  A,"  shows  upon  its  face  that  the  contracting  parties 
named  therein  were  C.  N.  Henderson,  of  the  one  part,  and  the 
.said  firm  of  Cooley,  Wadsworth  &  Co.,  of  the  other  part.  The 
bare  omission  of  Farwell's  signature  to  the  said  agreement,  or 
to  said  '  exhibit,'  does  not  vitiate  the  agreement  or  change  the 
real  parties  to  it.  If  it  was  entered  upon  and  faithfully  car- 
ried out  by  all  the  said  contracting  parties,  that  of  itself  con- 
firms the  agreement,  though  it  was  in  fact  signed  by  only  a 
part  of  the  parties  to  it.  But  the  original  agreement,  attached 
to  the  deposition  of  Mr.  Aiken's  dapiiuldiun,  on  pages  one  and 
two  of  appendix,  which  contains  the  signatures  of  Henderson, 
Cooley,  Wadsworth  &  Farwell,  settles  this  controversy  and 
fully  explains  the  omission  of  Farwell's  name  to  said  "Exhibit 
A,"  to  be  an  oversight,  as  we  have  before  said.  And,  besides, 
it  will  be  remembered  that  Mr.  Wadsworth  avers  in  his  bill 
that  Mr.  Farwell  was  one  of  the  partners  in  the  said  firms  of 
Cooley,  Wadsworth  &  Co.  If  F,arwell  was  a  partner  in  the 
said  firms  of  Cooley,  Wadsworth  &  Co.,  and  the  said  agree- 
ment of  dissolution  of  the  firm  of  C.  N.  H.  &  Co.,  was  made, 
in  fact,  between  Henderson  of  one  part,  and  the  said  first  firm 
of  Cooley,  Wadsworth  &  Co.,  though  Farwell's  name  was 
omitted  therefrom,  doe,s  not  change  the  said  agreement  nor  the 
real  parties  thereto.  The  fact  that  the  said  "  Exhibit  A"  con- 
tains a  scrawl  for  the  signature  of  the  fourth  person  (see  orig- 
inal exhibit,  for  it  is  omitted  in  the  printed  copy)  taken  in  con- 
nection with  the  fact  that  the  said  firm  of  C.  W.  &  Co.  was 
one  of  the  contracting  parties,  amounts  to  certain  proof  that 
Farwell  was  a  partner  in  the  firm  of  C.  N.  H.  &  Co.,  and  as  a 
member  of  the  said  firm  of  C.  W.  &  Co.,  Avas  one  of  the  con- 
tracting parties  to  said  agreement. 


31 

There  is  no  evidence,  (it  will  be  remembered)  that  the  part- 
ners of  the  said  firm,  one  and  all,  made,  or  adopted  the  said 
"  Exhibit  A,"  or  that  it  was  ever  treated  by  either  of  said  part- 
ners in  settling  the  affairs  of  that  firm  as  the  original  agree- 
ment of  dissolution,  except  on  the  ground  of  the  admitted  fact 
that  Far  well  was  one  of  the  partners.  To  say  that  this  "  Ex- 
hibit A,"  is  to  determine  the  question  before  this  Court,  as  to 
who  were  and  who  were  not  the  partners  in  the  firm  of  C.  N". 
II.  &  Co.,  and  that  the  persons  signing  it  were  the  partners 
alone,  would  be  to  ignore  all  the  acts  of  each  and  all  of  the 
several  partners,  as  well  as  the  business  transactions  of  the  firm 
itself,  and  that  of  the  firm  of  C.  W.  &  Co.,  and  to  contradict 
the  said  sworn  affidavits  of  Charles  N.  Henderson,  Charles  M. 
Henderson  and  John  V.  Farwell,  while  in  the  act  or  duty  of 
commencing  attachment  suits  in  behalf  of  said  firm  against  its 
debtors  during  the  business  progress  of  the  said  firm. 

Second.  To  further  sustain  his  allegation,  Mr.  Wadsworth 
introduces  the  original  Articles  of  Copartnership,  forming  the 
said  firm  of  C.  N.  Henderson  &  Co.,  bearing  date  the  15th  of 
August,  1851,  signed  by  Henderson,  Cooley  and  "Wadsworth, 
providing  for  and  constituting  said  copartnership.  It  is  found 
on  page  696-7. 

We  do  not  deny  but  that  this  agreement  was  made,  and  by 
the  persons  therein  named.  But  we  do  say  that  that  copart- 
nership never  went  into  effect ;  and  that  almost  immediately 
after  said  paper  was  signed,  Mr.  Farwell  was  admitted  into 
said  firm.  Said  writing  provided  that  Cooley  and  Wadsworth 
should  furnish  $5,000  towards  its  capital,  and  that  they  should 
discontinue  the  boot  and  shoe  trade,  then  carried  on  by  the 
firm  of  Cooley,  Wadsworth  &  Co.  As  Mr.  Farwell  was  a 
member  of  the  latter  firm  at  that  time,  they  could  not  discon- 
tinue this  business  without  Mr.  Farwell's  consent ;  and  there- 
upon, it  was  mutually  agreed  by  and  between  Charles  N. 
Henderson,  Francis  B.  Cooley,  Elisha  S.  Wadsworth,  and  John 
V.  Farwell,  that  the  firm  of  Cooley,  Wadsworth  &  Co.  should 
take  the  place  of  Cooley  &  Wadsworth,  in  the  firm  of  C.  N". 
II.  &  Co.,  and  furnish  their  share  of  its  capital,  and  receive 
then-  share  of  its  profits,  and  sustain  their  share  of  the  losses. 
This  made  Mr.  Farwell  a  partner  in  the  firm  of  C.  N.  H.  &  Co. 
from  the  commencement  of  its  business ;  and  all  the  acts  of 
the  several  partners,  whether"  legal  or  otherwise,  from  that 


32 

time  up  to  the  filing  of  Wadswortli's  bill  of  complaint,  recog- 
nized Fanvell  as  one  of  the  partners.  The  action  of  men  and 
firms  speak  louder  than  mer«  parchment  agreements.  Parch- 
ment agreements,  and  especially  partnership  agreements,  are 
almost  invariably  changed  in  one  or  many  particulars,  and  the 
results  of  such  changes  and  business  performed  by  the  partners 
under  such  changes,  are  entered  upon  the  books  of  the  firm,  and 
the  books  contain  the  only  evidence  of  such  change  or  changes. 
Is  it  to  be  supposed  for  a  moment  that  Charles  N.  Henderson, 
Charles  M.  Henderson,  and  John  V.  Farwell,  soon  after  the 
organization  of  said  firm,  and  during  its  business  career,  would, 
one  and  ah1,  go  before  the  court  with  their  several  solemn 
affidavits,  declaring  that  Farwell  was  a  partner  in  that  firm,  if 
he  was  not?  The  facts  and  acts  of  the  partners  detailed  in 
the  evidence,  makes  it  clear  and  certain  that  Farwell  was  a 
partner  in  that  firm. 

Third.  To  further  sustain  said  allegation,  complainant  in- 
troduces the  petition  of  Francis  B.  Cooley,  filed  in  the  Probate 
Court,  in  1859,  for  letters  of  administration  upon  the  estate  of 
C.  N.  Henderson,  in  which  he  purports  to  set  forth  the  members 
of  the  firm,  and  omits  the  name  of  Farwell.  For  copy  of 
petition  see  "  Exhibit  A"  to  Helm's  deposition,  page  237  (and 
also  see  the  original,  for  the  name  of  Farwell  stricken  out  does 
not  appear  in  printed  copy). 

Our  reply  to  this  is — 1st.  It  does  not  bind  Mr.  Farwell,  for 
he  is  not  a  party  to  the  proceeding.  2d.  The  name  of  Farwell 
is  written  in  one  place  in  the  instrument,  and  then  erased,  and 
a  blank  space  for  his  name  is  left  in  another  part  of  the  peti- 
tion. 3d.  The  omission  of  Farwell's  name  is  evidently  a  cleri- 
cal error,  and  the  erasure  of  his  name  may  have  been  the  work 
of  an  impostor.  4th.  Both  Mr.  Cooley  and  Farwell  allege  in 
their  answer  that  Farwell  was  a  partner  in  that  firm,  and  such 
allegation  is  against  the  personal  pecuniary  interest  of  Cooley. 
5th.  The  whole  evidence  considered  together  prove  that  Far- 
well  was  a  partner  in  that  firm.  6th.  The  said  petition  of 
Cooley  does  not  undertake  to  say  who  were  and  who  were  not 
partners  ;  but  only  that  the  estate  was  indebted  to  Cooley  & 
Wads  worth  in  over  the  sum  of  $20,000,  and  then  adds  that 
they  were  partners  with  C.  N.  Henderson.  This  petition  of 
Cooley's  might  conclude  him  upon  the  question  as  between 
himself  and  Farwell  and  Wadsworth,  if  it  was  not  shown  to 


33 

bo  a  mifit:  ">ut  it  cannot  effect  the  interests  and  rights  of 

Farwell,  because  lie  was  not  made  a  party  to  that  transaction. 
As  between  Cooley  &  Wadsworth,  it  has  been  clearly  shown 
that  the  name  of  Farwell  was  erroneously  omitted  from  the 
petition.  Mr.  Wadsworth,  as  clearly  and  as  surely  concludes 
himself  from  denying  thr.t  Farwell  was  a  partner  in  the  said 
tirm  of  C.  N.  H.  &  Co.,  by  the  receipts  which  he  gave,  recog- 
nizing Farwell  to  be  a  partner,  and  by  the  entries  in  the  books 
of  the  said  firms  of  C.,  W.  &  Co.  and  C.  N.  Henderson  &  Co., 
at  the  time  these  firms  were  formed,  and  by  every  subsequent 
entry  made  therein,  and  by  the  agreement  dissolving  the  said 
firm  of  C.  1ST.  H.  &  Co.,  which  Wadsworth  executed,  and  by 
wiiicn  it  appears  that  C.,  W.  &  Co.  was  the  partner  of  C.  $". 
Henderson,  and  which  agreement  was  signed  by  Farwell,  in 
connection  with  his  partners. 

Fourth.  To  further  sustain  and  prove  said  allegaticfn,  com- 
plainant introduces  "  Exhibit  D,"  attached  to  the  deposition 
of  C.  M.  Henderson,  a  copy  of  which  is  on  page  355,  purporting 
to  l)e  an  award,  made  by  arbitrators,  by  virtue  of  matters  of 
difference  between  Cooley  &  Wadsworth  and  Charles  M.  Hen- 
derson ;  and  he  desires  this  court,  from  this  award,  under  the 
proof,  to  conclude  that  this  arbitration  was  in  fact  between 
the  estate  of  C.  N.  Henderson  and  Cooley  &  Wadsworth,  and 
that,  therefore,  Farwell  was  not  a  partner  in  the  firm  of  C.  N. 
H.  &  Co. 

Our  reply  to  this  is — 1st.  That  under  the  proof,  this  matter 
of  arbitration  was  between  the  estate  of  C.  N.  H.,  deceased, 
and  complainant.  If  this  is  so,  then,  2d.  Neither  Cooley  nor 
Farwell  were  parties  to  it ;  and  if  not,  then  they  are  not  bound 
by  its  proceedings,  nor  are  they  responsible  in  any  sense  for 
its  errors.  3d.  It  would  be  unreasonable  to  aUow  the  act  of 
one  partner,  when  acting  in  his  own  individual  name  and  be- 
half, to  bind  his  copartners  to  a  fictitious  statement  of  facts 
touching  matters  personal  to  their  joint  interests  as  partners. 
If  such  is  the  law,  or  if  such  a  rule  of  evidence  as  to  who  are 
and  who  are  not  partners  in  a  firm  is  to  obtain,  a  person  of  cun- 
ning device,  with  a  fraudulent  intent,  could  prove  himself  the 
partner  of  any  firm  he  may  desire  to ;  and  although  he  was 
not  a  partner,  and  did  not  have  a  cent's  interest  in  the  firm, 
yet  he  could  come  in  as  one  of  the  largest  sharers  in  the  profits 
of  the  firm's  business,  l>y  a  like  proceeding. 


34 

4th.  'Neither  of  the  positions  of  the  complainants,  under 
the  evidence,  which  seem  to  tend  towards  making  Henderson, 
Cooley  and  Wadsworth  the  sole  partners  in  the  firm  of  P.  N. 
H.  &  Co.,  have  the  authority  of  the  several  partners.  All  and 
each  of  these  positions  stand  upon  some  isolated  transaction  of 
one,  or  at  most,  two  of  the  partners,  to  wit:  Cooley  and  Wads- 
worth  in  their  individual  capacity,  Avithout  the  concurrence  of- 
either  Henderson  or,  Far.well,  or  that  of  themselves.  Mr.  Gili 
lette,  the  administrator  of  the  estate,  expressly  testifies  on  page 
526,  Int.  20  and  21,  "that  the  membership  of  the  firm  of  C. 
N.  H.,  &  Co.,  during  his  and  his  predecessor's  administration, 
was  not  taken  into  consideration."  He  says,  "  I  knew  nothing 
of  the  firm  until  I  saw  the  gaper  in  Court,  a  bill  sworn  to  by 
E.  S.  Wadsworth."  (For  paper,  see  page  527,  Int.  22.) 

5th.  The  fact  that  the  report  of  the  arbitrators  (on  page  355) 
is  wholly  at  variance  as  to  what  was  submitted  to  them,  and 
as  to  who  were  the  parties  to  said  submission,  with  the  evi- 
dence as  to  such  facts,  pretty  conclusively  shows  that  said 
award  is  not  to  be  taken  as  deciding  who  were  and  who  were 
not  partners  of  said  firm ;  and  besides,  this  question  was  not 
before  said  arbitrators. 

Let  us  look  into  this  award.  The  arbitrators  "find  (seepage 
356)  C.  N.  Henderson  indebted  to  Cooley  and  Wadsworth  in 
the  sum  of  $971.50,  as  the  matter  of  diiference  bet  ween  Cooky 
and  Wadsworth  and  Charles  M.  Henderson."  By  comparing 
this  award  with  the  evidence  of  C.  M.  Henderson,  we  shall 
find  some  singular  developments. 

-  On  page  355,  cross-int.  133,  C.  M.  Henderson  testifies,  "that 
he  deems  the  award  correct,  and  it  finds  C.  N.  Henderson  in- 
debted to  Cooley  &  Wadsworth  in  the  sum  of  &903.03."  On 
page  334,  cross-int.  106-7,  he  testifies,  "  that  Henderson,  at  the, 
time  of  his  death,  was  indebted  to  Cooley,  Wadsworth  &  Co., 
independent  of  interest,  in  the  sum  of  15,147.50,  and  the  amount 
due  said  firm,  with  interest,  Avould  be  47,470.50." 

On  page  343,  cross-int.  135,  Henderson  testifies,  "That Far- 
well,  before  the  arbitrators  claimed  for  Wadsworth,  that  after 
selling  the  estates'  interest  in  the  assets  for  $13,000  to  Wads- 
worth,  said  estate  still  owed  Wadsworth,  as  the  successor  to 
the  interest  of  CL,  W.  &  Co.,  the  sum  of  $4,681.00." 

The  iMiLitiuUfuuTMj  their  award,  show  that  they  took  into 
consideration  all  matters  of  difference  between  the  parties,  and 


35 

they  find   C.  X.  H.    is   indebted  to  C.  <fc  W.  ill  the  sum  of 
$971.50.  „ 

Mr.  Henderson,  on  page  329,  cross  84,  testifies,  "  that  it  was 
agreed  that  Mr.  Wadsworth  was  to  take  the  assets — (that  is, 
the  interest  of  the  said  estate  in  them)  at  the  price  of  $13,000." 
(See  cross  88.)  Mr.  Wadsworth  and  this  witness  made  'the 
bargain.  (See  cross  89,  page  330.)  "  It  was  made  at  the  time 
the  arbitration  was  agreed  upon;"  (cross  85.)  "This  agree- 
ment determined  what  price  Wadsworth  was  to  give  said  es- 
tate for  its  interest  in  said  assets,  and  the  other  questions 
(questions  of  interest  upon  over  drafts  of  C.  N.  H.)  were  left 
to  arbitration,"  cross  86,  page  329,  "  but  Wadsworth  bought  the 
interest  of  the  estate  in  the  firni's  assets,  and  paid  the  sum  of 
$13, 000  for  them."  By  this  transaction  or  arbitration,  Wads- 
worth,  under  the  testimony  of  C.  M.  Henderson,  gives  to  the 
said  estate  the  sum  of  87,470.50,  and  gets  in  its  place  the  sum 
of  $971.50. 

On  page  342,  cross  130,  131,  Henderson testifiei,  "That the 
agreement  of  Wadsworth  with  the  estate  for  the  purchase  of 
its  interest  for  $13,000  -was  made  by  Wadsworth  with  him, 
and  that  he  acted  for  the  estate."  The  award  then  did  not 
settle  the  copartnership  account  with  Henderson,  nor  the  inter- 
est of  the  said  estate  in  the  copartnership  assets,  for  this,  the 
witness  sold  to  Wadsworth  for  $13,000.  The  arbitrators  set- 
tled then  in  fact,  the  private  account  of  C.  N.  Henderson  with 
the  firm,  and  nothing  more,  and  this  is  all  that  was  intended. 

Fifth.  To  further  sustain  his  said  allegation,  complainant 
introduces  "  Exhibit  C  "  to  Mr.  Henderson's  deposition,  on 
page  353,  purporting  to  be  a  statement  of  the  matters  between 
C.  N.  Henderson  and  Cooley,  Wadsworth  &  Co.,  alias  Cooley 
&  Wadsworth,  (the  paper  shows  that  these  names  are  used  in 
the  instrument  as  synonymous  terms,)  presented  to  the  arbitra- 
tors by  Wadsworth,  through  Mr.  Farwell.  (See  page  343,  cross 
135.)  This  complainant  regards  as  one  of  the  indissoluble 
links  in  the  evidence  to  prove  that  Farwell  was  not  a  partner 
in  the  firm  of  C.  N.  H.  &  Co. 

Our  specific  reply  to  this  is:     1st.     The  name  of  Cooley 
Wadsworth  &  Co.,  and  the  name  of  Cooley  &  Wadsworth, 
are  used  in  this  paper  in  the  same  sense  and  connection,  and 
that  they  mean  Cooley,  Wadsworth  &  Co.  in  every  case. 


36 

2d.  This  exhibit  is  not  in  Farw  ell's  hand- writing.  (See  page 

342,  cross  129.)  '  *> 
3d.  The  names  C.,  W.  &  Co.,  and  C.  &  W.,  are  used  by  C. 

M.  Henderson  in  his  testimony  as  synonymous  terms,  (see  page 

343,  cross  135,)  and  the  whole  testimony  supports  the  conclu- 
sion that  the  name  of  Cooley  &  "Wadsworth  were  used  when 
the  persons  so  using  them  meant  Cooley,  Wadsworth  &  Co. 
To  believe  that  C.  &  W.,  and  not  C.,  W.  &  Co.,  were  the  real 
and  only  partners  in  the  firm  of  C.  N.  H.  &  Co.,  we  must  cast 
aside  the  real  facts  in  the  case  as  shown  by  the  evidence.     But 
we  have  presented  complainant's  evidence  to  support  his  claims, 
and  now  let  us  look  into  the  evidence  on  the  other  side. 

We  have  already  collated  and  read  to  the  Court  the  evidence 
to  support  our  answer  to  the  complainant's  said  allegation,  and 
\ve  will  now  briefly  recall  the  Court's  attention  to  some  special 
points  this  evidence  sustains. 

First.  We  say  that  the  books  of  the  firm  were  opened  by 
Charles  N.  Henderson,  the  active  partner  in  the  firm  of  C.  N. 
H.  &  Co.,  in  the  names  of  himself  and  Cooley,  Wadsworth  & 
Co.,  as  the  partners,  and  that  Cooley,  Wadsworth  &  Co.  paid 
the  share  of  the  capital  into  the  firm ;  and  the  books  show  that 
Cooley,  Wadsworth  &  Co.  were  the  only  partners  with  -C.  N. 
Henderson.  (See  Spink's  testimony,  page  144-5,  cross  129. 

Second.  The  books  of  both  firms  show  that  the  profits  were 
enjoyed  and  divided  between  C.  N.  Henderson  and  Cooley, 
Wadsworth  &  Co.,  in  the  beginning  of  each  year,  and  the 
credit  balances  were  struck  on  said  books  at  its  close,  between 
Henderson  of  one  part,  and  C.,  W.  &  Co.,  of  the  other. 

Third.  On  the  30th  March,  1859,  complainant  bought  out 
the  interest  of  Cooley,  Wadsworth  &  Co.,  in  the  assets  of  the 
firm  of  C.  N.  H.  &  Co.,  and  treated  the  firm  of  C.,  W.  &  Co., 
as  a  member  of  the  firm  of  C.  N.  H.  &  Co. 

4th.  Both  papers  presented  in  evidence,  as  the  original 
agreement  of  dissolution,  recognize  the  firm  of  Cooley,  Wads- 
worth  <fc  Co.  as  the  partners  of  C.  N.  H.  It  matters  not  who 
wrote  the  agreement;  what  was  written  was  subscribed  by 
Wadsworth,  and  Henderson,  and  Cooley,  and  Farwell. 

J5th.  The  individual  acts  of  Wadsworth,  when  dealing  with 
the  assets  of  the  firm,  conclude  him  from  denying  that  Farwell 
was  a  partner  therein.  See  ,his  order  to  Simeon  Farwell,  to 
release  the  Kidd  mortgage,  on  page  147,  int'y  13,  bearing  date 


87 

January  29,  1863,  and  his  receipts  given  to  Mr.  Gillette,  on 
page  515  of  printed  evidence,  to  which  receipt  he  signs  the 
tirm  name  of  "  Cooley,  Wadsworth  &  Co.,"  when  acting  in  the 
capacity  of  assignee  of  the  interest  of  that  firm  in  the  assets  of 
"  C.  N.  H.  &  Co."  Then  again,  look  his  act  in  effecting  an  ex- 
change of  this  receipt,  at  a  time  when  we  were  taking  the 
depositions  of  Mr.  Burke,  for  the  one  on  page  520,  int'y  25. 
Here  we  find  a  bold  attempt  on  his  part  to  manufacture  testi- 
mony to  suit  his  allegation. 

5th.  The  commencement  of  all  suits  by  the  firm,  under  the 
special  direction  and  oath  of  C.  N.  Henderson,  the  active 
partner  in  the  name  of  Henderson,  Cooley,  "Wadsworth  & 
Farwell,  as  constituting  the  partners  in  the  firm  of  C.-N".  H.  & 
Co.,  leaves  not  a  doubt  upon  a  candid  and  unprejudiced  mind 
as  to  Farwell's  being  a  partner  therein. 

6.  TJie  fact  that  Wadsworth  had  free  access  to  the  books 
of  account  of  the  firms  of  Cooley,  Wadsworth  &  Co.,  and  C. 
N.  Henderson  &  Co.,  when  they  by  every  entry  therein  which 
had  any  reference  to  the  business,  the  stock  account,  the  divi- 
sion of  profits  and  losses  in  the  firm  of  C.  N.  Henderson  &  Co., 
all  of  which  showing,  that  the  firm  of  Cooley,  Wadsworth  & 
Co.  and  C.  N.  H.  were  the  partners  in  the  firm  of  C.  N.  H.  & 
Co. — and  the  fact  that  up   to   February,   1862,   his  (Wads- 
worth's)  office  was  in  the  office  were  the  books  of  the  firm  of 
C.,  W.  &  Co.  were  kept,  and  that  Rafter  the  30th  of  March, 
1859,  he  had  the  exclusive  custody  and  control  of  the  books  of 
C.  N.  Henderson  &  Co.,  would  certainly  seem  to  prove  con- 
clusively, that  Wadsworth  acted  intelligently,  when  he,  by  his 
doings  and  his  receipts,  recognized  Farwell  as  a  parter  in  the 
firm  of  C.  N.  H.  &  Co. 

7.  The  cutting  out  of  the  leaf  of  the  journal  on  which  the 
original  entry  of  $13,000  was  made  to  the  account  of  C.,  W.  & 
Co.,  on  the  books  of  C.  N.  H.  &  Co.,  after  Wadsworth  took 
the  exclusive  possession  of  them  (see  Burk,  on  pages  289,  290, 
206,  207,  208,  209,  210,  211,  212,  213,  215,  217,  218,  220)  is  a 
strong  circumstance  against  him,  which  he  does  not  explain. 

8.  Farwell  was  treated  as  a  partner  of  that  firm.     C.  N. 
Henderson,  before  his  death,  held  interviews  with  him  about 
the  assets.     (See  Henderson's  testimony,  page  306,  int'y  22.) 
On  page  334  and  110,  Henderson  testifies,  that  C.  N.  Hender- 
son treated  Farwell  as  a  partner  in  the  firm,  and  that  he  was  so 


38 

treated  in  all  suits  commenced  in  the  interest  of  the  firm. 
The  files  of  the  Courts  show  that  nil  suits  were  so  commenced. 
See  pages  629-30-31-32-34. 

9.  Thet/i!>s£  and  oldest  clerks  of  both  firms  believed  and 
were  informed  by  Henderson  that  Farwcll  was  a  partner  in  the 
firm  of  C.  N.  H.  &  Co.     Sec  Hill's  ev.,  page  672,  and  Miles'  ev. 
on  page  658-9.     Both  say  "  Farwell  was  treated  like  a  partner, 
and  they  believed  he  was  a  partner — that  their  intercourse  was 
that  of  partners."     Rockwell  testifies,  "  that  he  was  a  partner." 
See  page  635-6. 

10.  There  is  no  account  on  either  the  books  of  C.  N.  H.  & 
Co.,  opened  in  the  name  of  Cooley  &  Wads  worth — no  private 
or  stock  account.     But  on  the  books  of  both  firms,  the  private 
and  stock  accounts  are  in  the  name  of  C.  N.  Henderson  and 
Cooley,  Wadsworth  &  Co.,  as  constituting  the  firm  of  C.  N. 
H.  &  Co. 

11.  The  said  firm  of  C.  N.  H.  &  Co.  derived  its  business 
from  the   firm   of  Cooley,  Wadsworth  &  Co.,   and   Cooley, 
Wadsworth  &  Co.  released  its  boot  and  shoe  trade  to  that 
firm  (see  page  536,  inty  72).     This  of  itself,  when  taken  with 
the*  fact  that  Farwell  is  admitted  to  have  been  a  partnef  in  the 
said  firm  of  Cooley,  Wadsworth  &  Co.,  proves,  that  he  was  a 
partner. 

12.  During  the  transaction  of  the  business  of  the  firm  of  C. 
N.  PL  &  Co.,  and  at  the  time  of  its  dissolution  in  1855,  and  at 
the  time  Wadsworth  bought  the  interest  of  Cooley,  Wads- 
worth  &  Co.,  and  all  through  these  negotiations,  Farwell  is 
treated  as  a  partner — dealt  witn  as  a  partner,  and  in  all  things 
and  in  all  business  consultations,  negotiations,  and  contracts, 
lie  was  recognized  to  have  been  one  of  the  partners  in  the  firm 
of  C.  K  PL  &  Co. 

Take  all  these  circumstances  and  facts  presented  in  the  evi- 
dence, and  this  Court  cannot  come  to  any  other  conclusion 
than  that  the  idea  of  Wadsworth  in  attempting  to  make  out 
that  Farwell  was  not  a  partner  in  this  firm,  was  an  after-thought, 
and  that  it  was  probably  put  into  his  head  by  one  of  his  solici- 
tors in  this  suit.  The  complicity  proven  in  the  substitution  of 
a  certain  fixed  up  receipt  in  the  place  of  the  straight-forward 
receipt  given  by  Wadsworth  to  Mr.  Gillette,  and  the  marvel- 
ous disappearance  of  leaf,  paged  167  of  the  journal,  on  which 
the  original  entry  of  the  said  f  1 3,000,  was  made,  strongly  indi- 


39 

cate  that  this  was  an  after-thought.  Had  not  the  posting 
of  this  item  referred  to  the  journal  or  original  entry,  we  might 
have  believed  Mr.  Burk,  when  he  swore  that  the  ledger  con- 
tained the  original  entry.  The  manifest  confusion  of  this  wit- 
ness, and  his  strange  avoidance  of  questions  upon  this  subject, 
and  his  pretended  forgetfulness  of  facts  pertaining  to  the  ori- 
ginal entry,  and  its  strange  disappearance,  seem  to  indicate 

that  he  might  have  had^aoniething  to  do  with  this  matter  as  a 

f7/unJt^ 
favor  to  "VVadsworthJ^is  so  reckless  and  disregardful  of  the 

truth  in  making  his  cnarges  in  his  bill,  is  a  significant  warning, 
or  admonition,  not  to  rely  upon  his  allegations  as  true. 

FOURTH  ALLEGATION. 

On  page  8,  of  complainant's  bill,  he  alleges,  "  that  himself 
"  and  Cooley  and  Farwell  remained  partners  until  the  1st  day 
"  of  February,  1862  ;  and  that  at  the  expiration  of  their  first 
"  agreement  they  entered  into  a  new  one,  of  date  February  1st, 
"  1854,  commencing  on  the  1st  day  of  March,  1854,  and  ending 
"  on  the  1st  day  of  March,  1857,  with  a  capital  as  follows : 
"  Cooley  to  pay  in  $50,000,  Wadsworth  $40,000,  and  Farwell 
"  $10,000,  profits  and  losses  to  be  borne  \  to  Cooley  and  £  to 
"  Wadsworth  and  Farwell  each.  Cooley  and  Farwell  to  give 
"  their  time  to  its  business,  and  complainant's  time  was  released 
"  to  him  (page  9).  Farwell  to  have  charge  of  the  books,  and 
"  was  to  see  that  an  accurate  account  was  kept  of  all  expenses, 
"  losses  and  profits,  and  at  the  end  of  the  year  to  render  to  his 
"  partners  a  statement  of  the  same.  [For  all  information  of 
"  the  business  and  the  relative  condition  of  the  partner's 
"  accounts,  Wadsworth  specially  provided,  that  he  was  to  look 
"  to  the  books  for  the  standing  of  the  firm's  transactions  and 
"  for  the  private  accounts  of  the  partners].  And  then,  on 
"  pages  9  and  10,  he  further  alleges,  that  this  firm  was  but  a 
"  continuation  of  the  previous  firm  of  Cooley,  Wadsworth  & 
"  Co.,  with  such  changes  as  are  noted  (see  these  articles  on 
"  page  197  and  199  of  ev.) ;  and  that  on  the  4th  of  December, 
"  1856  (see  page  11  of  bill),  the  same  persons,  by  articles  of 
"  agreement  of  that  date  agreed  to  continue  the  same,  (that  is, 
"  the  said  second  firm  of  C.,  W.  &  Co.)  under  the  name  of 
"  Cooley,  Farwell  &  Co.,  for  5  years,  to  terminate  on  the  1st 
u  of  February,  1862.  Cooley  to  pay  in  as  capital  stock  $100,- 
"  000,  in  money  and  his  services;  Farwell  $20,000  in  money 


40 

"  and  his  services ;  and  Wadsworth  $80,000,  in  money  only. 
"  Cooley  to  share  4-  of  the  profits  and  losses,  and  Farwell  and 
"  Wadsworth  were  to  share  each  ^  the  profits  and  losses  (see 
"  agreement,  page  201  of  evidence,  and  on  page  11  of  bill) ; 
"  each  partner  to  be  allowed  to  draw  for  private  use  during  the 
"term,  84,000  from  the  profits.  He  then  sets  forth,  that, 
"  although  nominally  a  new  firm  was  constituted,  yet,  really,  it 
"  provided  for  a  continuation  of  the  old  firm  of  Cooley,  Wads- 
"  worth  &  Co.,  that  no  new  capital  was  subscribed,  or  intended 
"  to  be,  and  that  each  party  had  the  same  proportion  of  capital 
"  in  the  new  firm  as  in  the  old — the  same  relative  duties,  and 
"  the  same  proportion  of  profits  and  losses,  and  that  the  nominal 
"  increase  of  capital  provided  for  by  said  agreement  was  con- 
"  ditioned  upon  the  amount  realized  out  of  the  assets  of  the 
"  said  firm  of  Cooley,  Wadsworth  &  Co.,  and  if  not  realized, 
"  no  obligation  ^vas  imposed  upon  either  to  supply  the  defici- 
"  ency  in  his  nominal  subscription  from  his  private  funds — 
"  it  was  supposed  by  all  the  partners  at  the  time,  that  the 
"  assets  of  the  firm  of  Cooley,  Wadsworth  &  Co.  would  realize 
"  at  least  $200,000,  and  that  this  provision  was  inserted  for  the 
"  purpose  of  retaining  $200,000,  if  it  Avas  so  realized  in  the  busi- 
"  ness  of  the  firm  of  C.,  F.  &  Co."  (see  bill,  page  12).  And 
then,  he  charges,  that  "  he  would  (under  this  agreement,  see 
"  page  of  bill  13)  of  necessity  have  had  the  same  proportion 
"  of  capital,  relatively,  to  his  partners  in  the  firm  of  Cooley, 
"  Farwell  &  Co.,  which  he  had  in  the  firm  of  Cooley,  Wads- 
"  Avorth  &  Co.,  and  he  confided  in  FarAvell  to  make  the  proper 
"transfers;  and  that  he  had  no  personal  knoAvledge  of  the 
"  manner  in  which  FarAvell  made  the  transfers  from  the  books 
"  of  the  old  to  those  of  the  neAV  firm." 

By  these  allegations,  complainant  seeks  to  convince  this 
Court  1st,  that  the  said  three  firms  of  Cooley,  WadsAvorth  & 
Co.,  No.  1  and  2,  and  Cooley,  Farwell  &  Co.,  Avere  in  fact 
only  a  continuance  of  the  first  firm  of  C.,  W.  &  Co.  2d,  That 
there  Avas  no  obligation  upon  either  partner  to  make  up  his 
capital  in  that  firm  to  the  amount  named,  unless  that  amount 
Avas  in  fact  realized  from  the  assets  of  Cooley,  Wadsworth  & 
Co.  3d.  That  under  the  said  agreement,  the  complainant 
Avould  of  necessity  have  had  the  same  proportion  of  the  capital 
relatively  to  his  partners  in  the  firm  of  C.,  F.  &  Co.,  that  he 
had  in  the  firm  of  C.,  W.  &  Co.  4.  That  he  never  looked  into 


the  books  to  see  the  transfers.  5.  He  confided  in  Farwell  to 
make  them  ;  did  not  know  that  his  transfers  were  wrong  until 
about  the  1st  of  March,  1863. 

In  our  answer  we  reply,  1st,  that  the  defendants  admit  the 
formation  of  the  copartnership  tinder  the  said  firm  names,  bnt 
they  deny  that  the  second  .'and  third  firms  were  a  continuation 
of  the  terms  of  the  agreement  of  the  first  or  second  firm  of  C., 
W.  &  Co.  2d.  They  insist  that  the  partners  expected  at  that, 
tune  the  assets  were  ample  to  make  up  the  full  amount  of  stock 
to  $200,000,  and  they  insist  that  the  duty  was  imperative  upon 
each  to  furnish  his  private  share — and  that  their  increasing- 
business  demanded  this  amount  of  capital.  3d.  They  deny 
that  under  said  agreement,  the  said  complainant  would  have 
had  the  same  proportion  of  capital  relatively  to  his  partners  in 
the  firm  of  C.,  F.  &  Co.,  that  he  had  in  C.,  W.  &  Co.  4th. 
They  insist  that  complainant  had  access  to  the  books,  and 
that  if  he  did  not  know  what  was  in  them,  or  of  the  said  trans- 
fer, it  was  his  own  neglect  and  fault.  5.  They  deny  that  he 
confided  in  Farwell ;  but  in  all  matters  he  referred  to  the  books 
of  account,  or  might  have  done  so,  and  that  he  acted  upon  his 
own  judgment. 

These  allegations  and  denials  of  the  complainant  and  defend- 
ants, really  embrace  some  of  the  fundamental  differences 
between  them.  Too  much  care,  then,  cannot  be  observed  in 
examining  the  three  copartnership  agreements,  on  pages  of 
printed  evidence  197,  198,  199,  200  and  201-2.  By  all  and 
every  of  these  agreements  it  will  be  noticed,  that  time  as  well 
as  money  was  taken  into  the  account  at  the  time  of  the  organ- 
i/ation  of  said  several  firms  in  making  up  their  capital  stock. 

And  I  desire  to  call  particular  attention  to  the  fact ',  that  the 
share  of  each  partner  in  the  profits  and  losses  of  each  firm 
determines  the  value  the  said  several  firms  placed  upon  the 
cash  and  time  capital  the.  several  partners  were  to  devote  to 
the  business  of  the  said  several  respective  firms. 

It  will  be  seen  by  reference  to  the  articles  of  Agreement  (on 
page  197)  that  the  first  firm  of  Cooley,  Wadsworth  &  Co. 
was  a  continuation  of  the  firm  of  Cooley,  Wadsworth,  Phelps 
&  Co.  In  this  firm  Farwell  was  to  share  |  the  profits  and 
losses,  and  the  others  to  share  in  proportion  to  their  cash 
capital. 


42 

The  cash  capital  in  the  firm  of  Cooley,  Wadsworth,  Phelps 
&  Co.  was  $30,000,  as  follows  : 
Cooley's  cash  and  time  capital,  $16,000 

Wadsworth's  cash  and  time  capital,  5,000 

Phelps'  cash  and  a  portion  of  time,     -  8,000 

Farwell's  cash  capital,     -  $1,000 

"         time       "  2,750 

$32,750 

The  sum  of  $3,750  being  the  one-eighth  amount  of  the  whole 
of  the  capital  contributed  to  this  firm,  it  fixes  the  actual  amount 
of  capital, — that  is,  of  cash  and  time — which  Farwell  was  re- 
cognized to  have  devoted  to  the  business  of  the  firm. 

On  the  15th  of  May,  1851,  Phelps,  with  the  consent  of  his 
partners,  sold  out  his  interest  in  said  firm  to  Mr.  Wadsworth, 
and  then  Wadsworth  added  to  his  stock  the  sum  of  $3,000, 
and  they  then  changed  the  name  of  the  firm  to  that  of  C.,  W. 
&  Co.  In  this  new  arrangement  Farwell  was  to  have,  as  be- 
fore, one-eighth  of  the  profits  and  losses,  and  the  balance  of 
profits  and  losses  were  to  be  divided  equally  between  Cooley 
and  Wadsworth.  In  this  first  firm  of  C.,  W.  &  Co.,  the  part- 
ners' capital  therein  was  increased  as  follows : 
Cooley's  cash  and  time  capital,  -  $16,000 

Wadsworth's  cash  and  time  capital,  -         -       16,000 
Farwell's  cash  capital,  $1,000 

"       time     "     -  2,875  3,875 

$35,875 

Thus  recognizing  a  business  capital  of  this  amount,  and  that 
Farwell's  cash  and  time  share  of  it  to  be  $3,875.  The  sum  of 
$3,875  being  ^  of  the  Avhole  capital  of  the  firm,  and  Farwell's 
interest  in  the  profit  and  loss  account  being  ^,  it  determined  the 
value  of  his  time  capital  as  fixed  by  the  agreement  forming 
this  new  firm. 

Before  proceeding  with  the  2d  firm  of  C.,  W.  &  Co.,  allow 
me  to  illustrate  my  idea  of  time  or  service  capijtal  in  its  rela- 
tion to  cash  capital,  when  one  is  put  in  against  the  other  : 

If  two  men  enter  into  copartnership  in  wholesale  dry  goods. 
One,  Mr.  A,  puts  in  $100,000  cash,  but  no  time  capital,  and  he 
is  to  share  one-half  of  the  profits  and  losses.  The  other,  Mr. 
B,  puts  in  only  his  time  against  his  partner's  $100,000  cash, 
and  is  to  share  one-half  of  the  profits  and  losses.  Is  it  not 
plain  from  this  illustration,  that  these  two  partners  in  their  co- 


43 

partnership  agreement,  fixed  the  value  of  the  time  capital  to 
be  equal  to  that  of  the  $100,000  cash  capital  of  the  other. 

Take  another  illustration :  Suppose  the  same  men,  at  the  expi- 
ration of  the  last  named  firm,  form  a  new  copartnership  upon 
the  following  basis  :  Mr.  A,  puts  in  as  capital  $100,000,  and  de- 
votes his  whole  time  to  its  business,  and  is  to  share  half  of  its 
profits  and  losses.  Mr.  B,  is  to  devote  only  his  time  to  its  busi- 
ness, but  no  cash  capital,  and  he  is  to  share  half  of  its  profits 
and  losses.  By  this  agreement  it  is  seen  that  Mr.  B.'s  time  is 
taken  to  be  equal  in  value  to  Mr.  A.'s  cash  and  time  capital  of 
$100,000. 

Now,  suppose,  that  the  said  first  firm  in  this  illustration 
cleared  the  sum  of  $100,000,  and  all  the  assets  were  in  fact 
carried  into  a  second  firm,  and  the  second  firm  cleared  $100,- 
000,  and  then,  these  two  men  proposed  to  form  a  new  or  third 
firm,  and  they  agreed  to  pay  into  this  firm  the  sum  of  $400,- 
000  capital,  each,  as  follows  :  Mr.  A,  the  sum  of  $300,000  and 
no  time,  and  he  is  to  share  one-half  the  profits  and  losses,  and 
Mr.  B,  is  to  put  in  $100,000  and  his  time  as  capital,  and  he  is 
to  share  the  other  one-half  of  profits  and  losses. 
It  will  be  seen  that  Mr.  A,  in  the  first  firm,  had  cash 

capital,  $100,000 

And  his  profits  were  50,000 


Making,  $150,000 

Mr.  B,  had  no  cash  capital,  but  his  profits  are  $50,000. 
Mr.  A.  takes  $100,000  from  his  $150,000,  and  invests  it  in 

the  2d  firm,  and  puts  the  $50,000  in  his  pocket.  Mr.  B,  puts 

his  profits  of  $50,000  hi  his  pocket. 

In  the  2d  firm,  Mr.  A  puts  in  capital,  -     $100,000 

And  his  profits  are       -  50,000 


Making,  -     $150,000 

Mr.  B,  had  no  cash  capital,  but  rendered  his  services, 

But  his  profits  are  $50,000 

The  3d  firm,  Mr.  A,  is  to  pay  hi  capital,  $300,000 

He  brings  forward  his  capital  and  profits  from  the  2d 
firm,  which  amount  to      -  $150,000 

His  profits  in  the  1st  firm,  50,000 

$200,000 


'   44 

Mr.  A,  is  short  $100,000  from  the  amount,  and  Mr.  13,  has 
profits  from  his  service  capital  alone  to  fully  pay  up  his 
$100,000. 

It  will  be  perceived  that  these  partners  do  not  sustain  the 
same  relative  position  in  each  of  these  three  firms ;  but  that 
their  positions  are  as  distinct  in  each  firm  as  though  eacli  firm 
was  made  up  of  new  men. 

The  2d  firm  of  C.,  W.  &  Co.,  was  organized  on  the  1st  day 
of  February,  1854,  (see  ev.,  page  199,)  with  a  cash  capital  of 
$100,000. 

Cooley  was  to  pay  in  cash,  $50,000 

And  his  time  at  30,000 

Making     '  $80,000 

And  he  was  to  share  one-half  the  profits  and  losses. 
Wadsworth  was  to  pay  in  cash  -     $40,000 

And  share  one-fourth  the  profits  and  losses. 
Farwell  was  to  pay  in  cash  -     $10^000 

And  his  time  at  30,000 

$40,000 

And  to  share  one-fourth  the  profits  and  losses. 

Thus  making  Wadsworth  and  FarwelPs  cash  and  time  capi- 
tal just  equal  to  Cooley's  fcash  and  time  capital.  And  Cooley's 
share  in  the  profits  and  losses  being  just  equal  to  the  joint  in- 
terest of  Wadsworth  &  Farwell  in  the  same,  enables  us  to  say 
that  the  services  of  Cooley  and  Farwell  and  each  of  them  in 
this  firm  were  by  the  firm  considered  to  be  equal  to  a  cash 
capital  of  $30,000  each  in  this  firm,  or  $60,000,  or  equal  to  the 
use  of  this  amount  of  capital. 

This  firm  continued  its  business  until  the  -1st  day  of  Feb- 
ruary, 1857. 

On  the  4th  day  of  December,  1856,  these  same  partners 
formed  another  copartnership,  under  the  name  of  Cooley,  Far- 
well  &  Co.,  to  commence  business  on  the  1st  day  of  February, 
1857,  and  continued  nearly  five  years,  with  a  proposed  cash 
capital  of  $200,000. 

Of  this,  Cooley  was  to  pay  in  cash,  $100,000,  and  his  time, 
and  share  one-half  the  profits  and  losses. 

Farwell  was  to  pay  in  cash,  $20,000,  and  his  time,  and  lie 
was  to  share  one-fourth  the  profits  and  losses. 

Wadsworth  was  to  pay  in  cash,  $80,000,  but  no  time,  and 
was  to  share  one-fourth  of  profits  and  losses. 


From  this  it  will  be  seen  that  Cooley's  cash  and  time  capital 
was  just  equal  to  the  joint  cash  and  time  capital  of  Favwell  & 
Wads  worth,  and  that  his  share  in  the  profits  and  losses  w.-is 
just  equal  to  thcir's  combined  ;  and  that  Farwell's  cash  and 
time  capital  was  deemed  by  the  firm  to  be  equal  to  Wads- 
worth's  cash  capital,  and  because,  his  share  in  the  profits  and 
losses  was  just  equal  to  Wadsworth's.  Thus  it  is  seen,  that 
Farwell's  time  and  his  $20,000  in  money  is  taken  by  this  firm 
to  be  equal  to  Wadsworth's  cash  capital  of  $80,000 ;  and, 
therefore,  Farwell's  time  in  this  firm  is  taken  by  the  firm  to  be 
worth  the  use  of  $60,000.  This  would  make  the  nominal  cap- 
ital in  this  firm  as  follows  : 

Cooley's  cash  and  time  capital,  $160,000.00 

Farwell's  cash  and  time  capital,  -       80,000.00 

Wadsworth's  cash  capital,  80,000.00 


Making  a  nominal  capital  of,  -    $320,000.00 

That  is,  had  the  said  copartnership  agreement  been  fulfilled. 
It  will  be  remembered  that  the  time  capital  was  rendered  by 
Cooley  &  Farwell  to  the  business  of  this  firm. 

Now,  let  us  see  if  Wadsworth  "  would  have  had  the  same 
proportion  of  capital,"  in  the  second  firm  of  C.,  W.  &  Co., 
that  he  had  in  the  first  firm,  and  "  the  same  proportion  of  capi- 
tal" in  the  firm  of  Cooley,  Farwell  &  Co.,  he  had  in  the  second 
firm  of  C.,  W.  &  Co.,  that  is,  taking  it  for  granted  that  his 
and  his  partner's  cash  capital  in  the  said  last  two  firms  were 
derived  from  the  business  profits  and  capital  of  the  said  firms 
of  C.,  W.  &  Co. 

Suppose  that  the  first  firm  of  C.,  W.  &  Co.  had  made  a  net 
profit  of  $67,000 ;  Farwell  was  entitled  to  one-eighth  of  this, 
which  would  amount  to  the  sum  of  -  88,375.00 

His  cash  paid  into  this  firm,  1,000.00 $9,375.00 

Wadsworth's  share  of  profits  would  be  $29,312.50 

His  cash  capital,  16,000.00— $45,312.50 

Cooley's  share  of  profits,  N-J 9,312.50 

His  cash  capital,  16,000.00 — $45,312.50 

Making  the  sum  of,  $100,000.00 

In  making  up  the  second  firm  of  C.,  W.  &  Co.,  with  a  cash 

capital  of  $100,000,  on  the  basis  of  the  article  of  agreement, 

(see  ev.  page  199,)  the  several  partners  can  draw  upon  the 


46 

assets  of  the  first  firm  to  make  their  several  quotas,  as  follows  : 

Cooley  may  draw  the  sum  of  *4.">, 312. 50 

He  must  make  up  from  other  sources,      4, 687. .50— 

Thus  making  his  quota  of  capital  in  second  firm.       ••so 0,000. 00 

Wadsworth  may  take  his  full  share  of  his 

capital  stock  in  the  second  firm,  to  wit :  40,000.00 

and  then  have  $4,687.50  left  him  for 

private  use. 
Far-well  has  the  sum  of  * 0,3 75. 00 

and  must  make  up  from  other  sources,  625.00 — 

thus  making  up  his  cash  capital  to  >•>  10,000.00 

Now,  suppose  this  second  firm  of  C.,  W.  &  Co.  made  a  net 
profit  in  their  business  of  the  sum  of  $100,000.00,  and  these 
partners  agree  to  form  a  new  firm,  with  a  capital  of  $200,000, 
under  the  name  of  Cooley,  Far  well  &  Co.,  and  they  were  each 
of  them  to  use,  as  far  as  possible,  their  several  moneys  in  this, 
to  make  up  the  capital  stock  of  the  new  firm,  how  would  their 
several  accounts  stand  in  the  new  firm,  "  proportionably  V" 
Cooley  is  to  furnish  to  the  new  firm  -  $100,000 

He  brings  his  capital  from  the  old  firm  of    $50,000 

and  his  one-half  share  of  the  profits,          50,000 — $100,000 

Thus  he  makes  up  his  full  quota  from  that  source. 
Farwell  is  to  furnish  $20,000 

He  brings  his  capital  from  the  old  firm  of   $10,000 

and  his  one-fourth  share  of  the  profits,        25,000 

Making, 
Deduct  the  capital  he  is  to  furnish, 


and  he  has  a  surplus  of  -     $15,000 

Wadsworth  is  to  furnish  capital  to  the  new  firm,  -  $80,000 
He  brings  his  capital  from  old  firm  of  -  $40,000 

and  his  profits,  25,000 $65,000 

Thus  it  is  seen  that  Mr.  Wadsworth  is  short  $15,000,  and  Far- 
well  has  a  surplus  of  $15,000,  thus  showing  conclusively  that 
the  "proportion"  of  Wadsworth'' s  capital  relatively  to  his 
partners  in  the  firm  of  Cooley,  Farwell  &  Co.,  when  derived 
solely  from  his  interests  in  the  preceding  firm  or  firms,  is  not, 
and  cannot  be  made,  by  any  calculation,  the  same  as  in  the  said 
preceding  firms.  If  it  was,  then  he  would  not  have  been  short 
$15,000,  and  Farwell  would  not  have  had  a  surplus  of  $15,000. 


47 

It  is  true  that  the  several  partners,  at  the  time  of  the  organ- 
ization of  the  said  firm  of  Cooley,  Farwell  &  Co.,  expected  to 
1)0  able  to  realize  more  than  was  necessary  to  make  up  their 
several  shares  of  cash  capital  stock  to  that  firm  from  the  assets 
of  the  preceding  firms,  as  these  assets  amounted  at  that  time 
to  nearly  $300,000.  And  it  is  true  that  these  expectations 
were  not  fully  realized,  by  reason  of  the  severity  of  the  times. 
These  times  were  not  expected  to  occur,  but  they  did  come, 
and  that,  too,  suddenly. 

The  complainant  well  knew,  at  the  time  of  the  organization 
of  the  firm  of  Cooley,  Farwell  &  Co.,  that  he  had  agreed  with 
his  partners  to  divide  the  goods  on  hand  from  the  second  firm 
of  C.,  W.  &  Co.,  amounting  to  $115,369.84,  between  them  in 
the  ratio  of  profits,  as  shown  by  his  bill  of  complaint,  as  heroin- 
after  noticed,  and  which  was  to  be  put  into  their  several  stock 
accounts  after  it  was  so  divided,  as  capital  in  this  neAv  firm ;  and 
he  knew  that  Cooley's  share  of  such  goods  was  half,  and  there- 
fore he  (Cooley)  received  a  credit  to  his  stock  account  in  this 
new  firm  of  $5*7,684.92  ;  that  Wadsworth's  share  was  one- 
fourth,  and  that  he  received  a  credit  to  Ms  stock  account  in 
this  firm  of  $28,842.46 ;  that  Farwell's  share  was  one-fourth, 
and  that  he  received  a  credit  to  his  stock  account  in  this  firm, 
from  that  source,  of  $28,842.46.  He  also  knew  that  they  had 
agreed  to  divide  the  goods  on  hand  from  the  first  firm  of  C., 
W.  &  Co.  between  them  in  the  ratio  of  profits,  and  then  put 
each  partner's  share  of  goods  so  divided  into  the  second  firm, 
as  so  much  capital  stock  to  his  credit  in  that  firm ;  and  he 
knew  further  that  he,  with  Cooley,  received  the  entire  receipts 
of  all  collections  from  the  remaining  assets,  which  were  divi- 
ded between  them,  and  credited  to  their  stock  accounts  in  the 
said  firms  of  C.,  W.  &  Co.  No.  2,  and  C.,  F.  &  Co.,  and  that 
the  books  contained  the  entries  and  evidence  of  such  agree- 
ments and  divisions  of  the  goods  so  on  hand  at  the  close  of 
said  firms  of  C.,  W.  &  Co.  Nos.  1  and  2 ;  and  yet,  with  this 
knowledge  and  these  entries  in  the  books  of  accounts,  and  his 
own  statements  and  admissions  in  his  bill  of  complaints,  In- 
comes into  court  with  an  allegation  denying  it  all. 

From  the  foregoing  statements,  it  must  appear  that  the  com- 
plainant's allegations  are  untrue  :  first,  in  stating  that  the  firm 
of  C.,  F.  &  Co.  was  a  continuance  of  the  firm  of  C.,  W.  &  Co., 
and  that  he  would  have  the  same  proportion  of  capital  relative- 


48 

ly  to  his  partners  in  the  firm  of  C.,  F.  *fc  Co.  that  he  had  in  the 
firm  of  C.,  W.  &  Co. ;  second,  in  stating  that  the  sum  of 
$200,000  cash  to  the  capital  stock  of  C.,  F.  &  Co.  was  to  be 
paid  in  only  011  condition  that  the  same  was  fully  realized  from 
the  assets  of  the  previous  firms.  (The  articles  of  agreements, 
and  the  increasing  business  done  by  these  firms  show  that  they 
expected  each  partner  to  make  up  his  full  quota  of  capital.) 
Third,  in  stating  that  complainant  had  no  knowledge  of  the 
condition  of  the  books,  nor  of  the  transfer  and  division  of 
goods,  and  that  he  relied  wholly  upon  Mr.  Farwell's  state- 
ments, &c. 

We  have  proved  complainant  to  be  a  shre\\~d,  sharp,  and 
cautious  business  man,  by  several  witnesses.  Mr.  Spink,  who 
has  known  him  long,  so  testifies,  and  so  does  C.  M.  Henderson, 
and  others. 

Mr.  Leiter  testifies,  in  his  second  deposition,  on  page  692, 
I.  9,  that  at  and  prior  to  the  date  of  said  instrument  of  disso- 
lution, to  wit.,  January  21,  18*52,  the  complainant  with  his  said 
partners  "were  for  many  days  holding  private  meetings  or 
consultations  in  their  private  office  where  the  books  of  ac- 
counts were  kept." 

Complainant  sets  forth  as  one  of  the  reasons  why  the -said 
agreement  should  be  set  aside  for  fraud,  that  he  does  not 
stand  in  the  firm  of  C.,  F.  &  Co.  relatively  to  his  partners,  as 
well  as  he  did  in  the  firm  of  C.,  W.  &  Co.,  and  that  the  rea- 
son for  this  is,  that  he  was  ignorant  of  the  mode  of  transfer  of 
the  accounts  and  assets  from  the  books  of  the  firm  of  C.,  W. 
&  Co.,  to  those  of  C.,  F.  &  Co. 

How  could  he  stand  as  well '?  Does  he  suppose  that  Cooley 
&  Farweil  are  to  put  money  into  his  pocket  gratuitously  ?  Has 
he  lived  so  long  upon  their  labors  and  skill  Avithout  a  fair  com- 
pensation, under  the  agreements  with  him,  that  he  now  in  his 
greed  asks  this  court  to  come  to  his  aid  and  compel  them  to 
yield  to  his  inordinate  covetousness  by  casting  aside  and  riding 
over  his  solemn  agreements  with  them  *i  And  to  induce  this 
court  so  to  decree,  he  comes  in  with  a  statement  that  he  is  in- 
capable in  his  iinderstanding,  and  in  his  nature  he  is  and  was 
confiding,  and  that  he  never  examined  the  books  of  accounts  ; 
and  then  on  the  heel  of  this,  he  says  he  made  the  said  agree- 
ment because  of  the  statements  of  Cooley  *fc  Farweil  to  him 
at  that  time,  and  "  becmise  the  books  (which  he  examined,  of 


49 

course),  of  accounts  supported  these  statements."  He,  first, 
says  he  never  examined  the  books  of  accounts ;  second,  that 
he  did  examine  them,  and  they  confirmed  the  statements  of 
Cooley  &  Farwell ;  third,  that  if  he  had  examined  the  books 
lie  would  not  have  understood  them  ;  and,  fourth,  that  he  ex- 
amined them  and  they  mi. -led  him. 

HOAV  could  he  stand  as  well  in  the  last  firm,  relatively,  as  he 
did  in  the  first  ?  He  had  not  furnished  any  capital  to  this  new 
firm,  except  that  which  he  derived  from  the  former  firms,  and 
he  must  have  known  that  in  order  to  stand  as  well,  relatively, 
he  must  furnish  other  capital  than  that  from  the  former  firms, 
and  because  he  did  not  have  it  in  a  converted  form  in  those 
firms.  He  knew  of  the  agreement  to  divide  the  goods  between 
partners  in  the  ratio  of  profits.  He  knew  that  from  this  source 
he  had  derived  a  credit  to  his  capital  stock  in  the  sum  of 
$28,842.40,  and  from  collections  the  sum  of  $10,419.00,  making 
the  sum  of  $39,281.46.  He  also  knew  that  he  had  been  or  was 
to  be  charged  with  a  balance  of  interest  in  the  amount  of 
$12,097.02,  for  he  has  presented  the  evidence  of  this  knowledge 
in  his  said  "  Exhibit  A"  to  Mr.  Spink's  deposition  on  page  44 
of  ev.,  and  yet  he  desires  this  court  to  conclude  that  he  is  ig- 
norant— a  weak-minded  and  confiding  man,  and  that  he  never 
had  this  knowledge  himself,  but  confided  wholly  to  Mr.  Far- 
well's  statements,  and  that  these  statements  did  not  reveal 
these  facts,  and  thereby  he  has  been  deceived.  What  effront- 
ery to  throw  up  into  the  face  of  the  court,  in  view  of  the  evi- 
dence that  his  allegations  and  pretentious  are  utterly  untrue. 

N.  B.  But  I  must  not  omit  to  call  especial  attention  to  an- 
other clause  in  his  said  allegation,  to-wit,  that  complainant  "in 
all  respects  had  fulfilled  his  agreements  with  his  partners,  ac- 
cording to  the  spirit  and  intent  of  his  said  agreements  of  De- 
cember 4,  1856."  Let  us  see  by  the  evidence  Avhether  he  did 
or  not. 

First.  In  violation  of  this  and  all  former  agreements,  he 
formed  a  copartnership,  on  the  1st  day  of  February,  1857,  with 
a  wholesale  clothing  house  in  the  city  of  Chicago,  under  the 
name  of  Huntington,  Wadsworth  &  Parks. 

Second.  In  violation  of  his  said  agreement,  he,  on  the  1st 
day  of  March,  1859,  formed  a  copartnership  with  C.  M.  Hen- 
derson, to  carry  on  the  Avholesale  trade  in  boots  and  shoes,  in 
the  city  of  Chicago,  under  the  firm  name  of  C.  M.  H.  tfc  Co. 


50 

Third.  In  violation  of  his  said  agreement,  he  formed  a  co- 
partnership with  Letz  &  Co.,  to  cany  on  the  iron  trade  in  the 
city  of  Chicago. 

Fourth.  In  violation  of  said  agreement,  he  neglected  to 
pay  into  the  capital  stock  of  said  firm  his  share  thereof,  to-wit, 
the  sum  of  $80,000,  and  left  his  said  account  in  arrears  about 
$40,000. 

Fifth.  In  violation  of  his  agreement,  he  drew  from  the  as- 
sets of  the  said  firm  of  C.,  F.  &  Co.  the  full  sum  of  $47,125.27, 
see  evidence,  page  207,  cross-int.  148. 

Sixth.  In  violation  of  his  said  agreement  and  its  true  intent 
and  spirit,  he  endorsed  the  paper  of  the  said  firm  of  Hunting- 
ton,  Wadsworth  &  Parks,  to  the  amount  of  about  $155,000  to 
$200,000,  and  that  of  Letz  &  Co.  to  the  amount  of  from 
$25,000  to  $50,000,  and  thereby  embarassing  himself  to  such 
an  extent  that  he  lost  his  credit  and  influence.  It  is  an  old 
maxim  that  "he  that  seeks  equity  must  do  equity."  Not  in  a 
single  instance  has  he  fulfilled  his  said  agreement  with  his 
partners,  save  one,  and  that  is,  he  has  taken  his  share  of  the 
profits,  and  now  stands  crying  for  more,  like  the  "horse-leech," 
and  his  cry  is  still,  give  me  more  ! 

FIFTH  ALLEGATION. 

5.  On  pages  14  and  15  of  bill,  complainant,  alleges,  "  that 
"  a  part  of  the  assets  of  the  firm  of  C.  N.  Henderson  &  Co., 
"  prior  to  the  formation  of  the  firm  of  C.,  F.  &  Co.  had  been 
"  turned  over  to  the  firm  of  C.,  W.  &  Co.,  as  security  for 
"  advances  made  on- account  of  the  liabilities  of  the  firm  of  C. 
"  N.  H.  &  Co.,  and  that  such  assets  (so  turned  over)  failed  to 
"  realize  the  amount  of  such  advances  and  the  account  remained 
"  opened  until  early  in  the  spring  of  1859,  and  that  at  this  time 
"  Cooley  &  Farwell  had  acquired  a  little  independent  credit 
"  of  their  own  and  had  become  acquainted  with  buyers  and 
"  sellers  east  and  Avest  and  in  a  manner  independent  of  com- 
"  plainaut,  and  with  a  view  of  expelling  complainant  from  the 
"  firm  of  C.,  F.  &  Co. ;  they  stated  to  complainant  that  his 
"  account  with  said  firm  was  largely  overdrawn  and  that  com- 
"  plainant  had  violated  the  terms  of  said  copartnership  and  had 
"  forfeited  his  right  to  continue  longer  a  member  of  said  firm ; 
"  and  threatened  to  declare  the  articles  of  copartnership  for- 
"  feited,  etc.,  an.d  that  as  a  condition  of  complainant's  being 


"  allowed  to  remain  a  partner  in  that  firm,  he  should  repay  said 
"  firm  the  said  advances  on  account  of  C.  N.  H.  &  Co.,  and 
"  take  upon  himself  the  labor  and  responsibility  of  reimbursing 
"  himself  out  of  said  Henderson  assets  and  being  unwilling  to 
"  be  ejected  from  said  firm,  complainant  agreed  to  assume  the 
"  said  Henderson  account  And  to  pay  said  firm  (C.,  W.  &  Co.) 
"  their  said  advances,  and  that  such  advances  amounted  to 
"  $19,000.  That  he  paid  to  said  firm  $6,000,  and  that  the 
"  balance  of  $13,000  was  charged  to  his  private  account  under 
"  date  April  1st,  1859.  And  that  the  statement  of  Cooley  and 
"JFarwell,  that  complainant's  was  overdrawn,  was  untrue,  and 

"  That  complainant's  private  account  was  relatively  as  good 
"  as  the  private  account  of  either  of  his  partners,  and  many 
"  thousand  dollars  better  than  Farwell."  If  Farwell  was  not 
a  partner  in  the  firm  of  C.  N.  H.  &  Co.,  what  has  Farwell  as 
a  partner  in  the  firm  of  C.,  W.  &  Co.  to  do  in  advancing  $19,- 
000  to  the  firm  of  C.  N.  H.  &  Co.  ?  Why  does  complainant 
constantly  mix  Farwell  up  with  the  interests  of  the  firm  of  C., 
W.  &  Co.  to  such  an  extent,  if  he  was  not  a  partner  therein '! 

But  these  allegations  the  defendants  deny  and  insist,  that 
instead  thereof,  that 

1st.  The  firm  of  C.,  W.  &  Co.  never  received  the  assets  of 
the  firm  of  C.  NT.  H.  &  Co.,  to  secure  said  firm  of  C.,  W.  & 
Co.  for  its  advances  to  C.  N.  H.  &  Co.,  by  reason  of  its 
liabilities. 

2d.  They  insist  that  at  that  time  complainant  was  in  copart- 
nership with  the  young  man  C.  M.  Henderson,  in  the  boot  and 
shoe  trade  in  Chicago,  under  the  firm  name  of  C.  M.  Henderson 
&  Co.,  he  was  using  them  for  his  personal  interests,  and  they 
well  might  so  suppose,  for  he  had  the  assets  a  long  time.  % 

3d.  They  insist,  that  the  credit  and  independence  of  Cooley 
&  Farwell  of  complainant,  existed  from  their  acquaintance 
with  and  was  not  acquired  by  or  through  him. 

4.  They  insist  that  complainant  had  overdrawn  his  private 
account  and  that  it  did  not  stand  relatively  as  well  as.C.  <fc  F's. 

5.  They  deny  that  they  imposed   upon   complainant  the 
necessity  of  paying  the  firm  of  C.,  W.  &  Co.  $19,000  and  then 
required  him  to   "  take  upon  himself  the  labor  and   respon- 
sibility of  reimbursing  himself  out  of  the  said  assets,  as  a  con- 
dition to  his  remaining  in  said  firm  of  C.,  F.  &  Co."     (But  if 
this  was  so,  then  it  was  a  good  consideration)  but  on  the  other 


hand,  they  insist  that  the  interest  of  the  firm  of  C.,  W.  &  Co. 
in  said  assets  amounted  to  about  $19,000,  and  that  said  firm 
sold  said  interest  to  complainant  for  about  $14,807.22,  and  that 
$13,000  of  this  amount  was  charged  to  the  private  account  of 
complainant  on  the  books. 

6.  The  defendants  state  that  complainant's  account  was 
relatively  overdrawn,  and 

7.  They  deny  that  complainant's  private  account  was  "  rela- 
tively as  good  as  C.  and  F.  and  many  thousand  dollars  better 
than  Farwell's." 

Who  stands  supported  by  the  evidence,  the  complainant  or 
defendants  ? 

The  articles  of  copartnership  of  these  several  firms,  and  the 
books  of  account  introduced  in  evidence  by  the  complainant, 
contradict  his  allegations,  while  he  has  failed  to  introduce  any 
evidence  to  prove  by  other  means  the  truth  of  the  same. 

1st.  "Where  is  his  proof  that  he  paid  $6,000  beside  said 
charge  to  his  account  of  $13,000  for  the  said  advances  of  C., 
W.  &  Co.  to  C.  N.  H.  &  Co.  ?  He  has  failed  to  produce  any, 
and  he  cannot,  for  it  is  untrue. 

2d.  What  proof  is  there  that  Cooley  and  Farwell  had  no 
independent  credit  and  influence  of  their  own  until  the  spring 
1859,  and  up  to  this  time  their  independence  and  credit  de- 
pended upon  his  ?  He  has  not  produced  any,  and  he  cannot, 
for  this  is  likewise  untrue. 

3d.  What  proof  is  there,  that  Cooley  &  Farwell  tried  to 
eject  complainant  from  the  firm  of  C.,  F.  &  Co.  hi  the  spring 
of  1859  ?  "  They  deny  the  allegation.  Mr.  C.  M.  Henderson 
testifies,  "  that  Wadsicorth  told  him  he  must  leave  either  the 
firm  of  C.  M.  Henderson  &  Co.,  or  that  of  C.,  F.  &  Co.,  unless, 
the  afiairs  between  the  estate  of  C.  N".  H.  and  Cooley,  Wads- 
worth  &  Co.  were  settled,  and  that  complainant  stated  to  him 
that  he  had  bought  the  said  assets,  or  the  interest  of  C.,  W.  & 
Co.  for  $13,000."  This  is  absolutely  all  the  testimony  on  this 
point.  Does  this  prove  this  allegation?  By  no  means. 

4th.  What  proof  is  there,  that  Cooley  &  Farwell  threatened 
to  turn  complainant  out  of  the  firm  of  C.,  F.  &  Co.,  unless  he 
paid  to  C.,  W.  &  Co.  $19,000  and  take  the  labor  and  responsi- 
bility of  reimbursing  complainant  out  of  said  assets  ?  There  is 
absolutely  no  evidence  whatever  to  sustain  this  charge. 


58 

There  is  testimony  upon  the  questkm,  whether  or  not,  com- 
plainant's private  account  Avas  overdrawn  in  the  firm  of  C.,  F. 
&  Co.,  and  that  his  private  account  was  relatively  much  larger 
than  his  said  partners.  We  will  turn  to  it. 

1st.  •  The  agreement  (see  page  199  of  printed  ev.)  of  Dec.  4, 
1856,  by  which  this  firm  was  organized,  provides,  that  "  each 
partner  during  the  5  years  of  that  term  of  copartnership,  were 
to  be  allowed  to  draw  for  private  purposes,  only  $4,000." 
How  much  did  the  several  partners  draw  up  to  Jan.  21,  1863? 

Wadsworth  drew  from  the  firm  of  C.,  F.  &  Co.  the  sum  of 
$52,376.38  for  private  use.  (See  Spink's  answer  to  the  86 
cross,  page  110.) 

Mr.  Spink,  in  his  direct  examination  on  page  45,  Int.  60,  tes- 
tifies, "  that  the  private  account  of  Wadsworth,  on  the  25th  of 
January,  1862,  was  $46,863.52." 

(It  will  be  observed  that  the  charge  of  $2,538.47,  and  seve- 
ral other  items,  not  entered  upon  the  ledger  on  the  21st  of  Jan- 
uary, 1862,  had  been  in  fact  drawn  by  Wadsworth  prior  to  the 
21st  of  January,  1862,  though  not  entered  till  the  24th.  (See 
Spink's  ev.,%page  45,  int.  59.) 

In  his  cross-examination,  on.  page  110,  cross-int.  86,  he  tes- 
tifies, "  that  the  amounts  drawn  by  the  partners  from  the  1st 
day  of  February,  1857,  to  the  21st  of  January,  1862,  for  pri- 
vate use,  were  as  follows  : 

By  Cooley,  $45,783.86 

By  Wadsworth,  52,376.38 

By  Farwell,  32,364.71 

On  page  206,  cross-int.  148,  he  testifies,  "that  the  several 
amounts  drawn  by  the  partners  from  the  funds  of  Cooley,  Far- 
well  &  Co.,  for  private  purposes,  were  as  follows  : 

By  Cooley,  $45,783.67 

By  Wadsworth,  47,125.27 

By  Farwell,  26,993.16 

On  page  180,  in  his  examination  in  chief,  int.  93  and  94,  he 
testifies,  "  that  the  amount  drawn  by  Wadsworth  on  private 
account,  from  the  firm  of  C.,  F.  &  Co.,  up  to  21st  January, 
1862,  was  $34,310.05. 

But  during  the  time  from  the  1st  of  February,  1857,  to  21st 
January,  1862,  Wadsworth  also  received  moneys,  as  follows : 


54 

From  collections  of  C.  N.  H.  &  Co.,  $2,527.86 

From  1st  firm  of  C.,  W.  &  Co.,  13,000.00 

From  C.,  F.  &  Co.,  2,538.47 


Making  the  said  amount  (as  above)  of  -     $52,376.38 

On  page  178,  int.  86,  in  his  examination  in  chief,  Mr.  Spink 
testifies,  "  that  the  drafts  of  the  partners  being  in  the  ratio  of 
profits,  and  Far  well's  draft  in  the  1st  firm  of  C.,  W.  &  Co., 
being  $11,037.79,  Cooley  and  Wadsworth  would  be  entitled  to 
draw  the  sum  of  $50,119.02  ;  but  in  the  said  amount  of  $11,- 
037.79  to  Farwell,  the  loan  to  him  of  $5,000  and  the  interest 
thereon,  in  erroneously  included." 

On  page  205,  cross  141,  he  testifies,  "that  Farwell,  instead 
of  drawing  fro  in  the  funds  of  C.,  W.  &  Co.,  No.  1,  the  said 
sum  of  $11,037.79,  as  above  stated,  he  only  drew  in  fact  the 
sum  of  $2,159.56."  And  in  cross  142,  page  205,  he  says  "that 
said  loan  and  interest  ought  not  to  have  been  included  in  said 
amount,  because  it  was  a  special  loan  to  Farwell." 

On  page  112,  cross  89,  Mr.  Spink  testifies,  "  that  in  the  2d 
firm  of  C.,  W.  &  Co.,  Cooley  and  Farwell,  to  be,  equal  with 
Wadsworth  in  their  drafts,  would  have  been  entitled  to  draw 
more  than  they  did,  the  sum  of  $16,436.71." 

On  page  112,  cross  87,  he  testifies,  "that  in  the  firm  of 
Cooley,  Farwell  &  Co.,  Cooley  and  Farwell,  to  be  equal  with 
Wadsworth  in  their  drafts,  would  have  been  entitled  to  draw 
the'sum  of  $66,452.57  more  than  they  did." 

Mr.  Spink  testifies  on  page  209,  cross  153,  "  that  the  actual 
per  centage  on  cash  and  time  capital  paid  and  rendered  to  the 
firm  of  Cooley,  Farwell  &  Co.,  by  the  several  partners,  were 
as  follows : 

By  Cooley,  5  If  per   cent,  of  the  whole  amount. 

By  Farwell,  -  33  "     .        "  " 

By  Wadsworth,  15  "  "  " 

On  page  112,  cross  90,  Mr.  Spink  testifies,  "that  the  deficit 
of  capital  and  over  draft  of  the  complainant,  on  the  basis  of 
his  testimony  in  chief  and  on  the  basis  of  the  books,  relatively, 
to  his  partners,  were  as  follows  : 

On  the  basis  of  the  books  his  over  draft  was     -     -    $55,764.32 
On  the  basis  of  Spink's  examination  in  chief  his  over 

draft  was  -         -      34,453.89 


55 

On  page  90,  cross  67,  he  testifies  "  that  the  books  were  kept 
accurately,"  and  on  page  105,  cross  74,  75  and  76,  he  says, 
"  the  books  show  full  credits  and  no  erroneous  charges,  and 

~         t 

that  there  are  no  accounts  properly  chargeable  but  what  have 
been  charged  or  paid ;"  and  on  page  107,  cross  77,  he  says, 
"  there,  was  no  injury  done  or  impropriety  in  leaving  the  build- 
ing account  on  the  books  in  that  manner." 

The  evidence  there  clearly  shows  that  the  credit  and  inde- 
pendence of  Cooley  and  Farwell  did  not  depend  upon  either 
the  complainant's  credit  or  capital,  for  it  shows  that,  relatively, 
he  was  far  behind  both  of  them  in  his  capital  and  credit,  and 
that  he  was  ahead  of  them  only  in  his  over  drafts  upon  the 
funds  of  the  firm  for  his  private  use.  So  far  from  complain- 
ant's sustaining  the  business  and  credit  of  the  firm  by  his 
money  and  influence,  he  became  the  source  of  the  firm's  great- 
est weakness,  and  the  whole  responsibility  of  the  business  and 
the  credit  of  the  firm  was  met  by  Cooley  and  Farwell  alone,  by 
their  money,  influence  and  energy. 

On  the  basis  of  Spink's  examination  in  chief,  which,  he  says, 
on  page  83,  cross  46,  57,  he  "  adopted  because  he  was  so  in- 
structed by  complainant  and  his  counsel,  WadswortJi's  acc't 
relatively  was  overdrawn  $34,453.89,  and  on  the  basis  of  the 
books  his  over  drafts  and  deficit  of  capital  is  $55,764.32." 
(See  page  112,  cross  90.) 

Is  not,  then,  his  account  largely  overdrawn  V 

But  he  (complainant)  says  he  did  not  know  how  his  account 
stood,  except  by  the  statements  of  Cooley  and  Farwell  to  him 
about  the  21st  of  January,  1862,  which  induced  him  to  make 
said  agreement  of  that  date.  Mr.  Leiter  answers  him  upon 
this  denial,  as  follows  : 

On  page  72,  int.  9,  10  and  11,  Mr.  Leiter  (the  book-keeper) 
testifies,  "  that  Wadsworth  and  Farwell  kept  their  office  with 
the  firm  of  C.,  F.  &  Co.,  up  to  February  1,  1862,  and  that  all 
the  partners  had  free  access  to  the  books." 

On  page  473,  int.  12,  he  says,  "that  some  time  in  1859, 1860 
or  1861,  complainant  requested  of  him  a  statement  of  his  ac- 
count in  the  several  firms,  and  that  he  gave  him  such  an  ac- 
count, showing  the  moneys  he  had  drawn,  his  proportion  of 
the  profits  so  far  as  they  were  divided,  also  the  stock  paid  into 
the  several  firms.  In  the  account  of  C.,  F.  &  Co.,  the  profit 


56 

and  loss  account  was  not  divided,  but  I  gave  him  the  aggre- 
gate." 

In  answer  to  the  14th  int.,  he  says,  "  that  Avhenever  either 
of  the  partners  desired  information  of  him  personal  to  them- 
selves, touching  the  books  of  account,  ho  gave  them  the  infor- 
mation they  wanted,  so  far  as  he  knew." 

On  page  574,  int.  15,  he  testifies,  "that  annual  statements 
were  made  of  the  merchandise  and  moneys  drawn  by  each 
partner,  and  that  each  partner's  statement  was  given  to  him  ;" 
and  in  answer  to  the  16th  int.,  he  says,  "  At  the  close  of  each 
year,  the  moneys  drawn  by  each  partner  was  placed  to  his  ac- 
count in  the  back  part  of  the  ledger ;  the  net  profits  were 
placed  to  a  profit  and  loss  account  in  the  ledger ;  and  beside 
these  entries  (int.  17,)  there  appeared  on  the  books  of  C.,  W. 
&  Co.,  the  capital  furnished  by  each  partner  to  the  capital 
utock  ;  and  on  the  books  of  C.,  F.  &  Co.,  the  capital  that  was 
to  be  furnished  to  the  firm." 

On  page  574,  int.  18,  he  testiiies,  ';  that  after  the  close  of  the 
firm  of  C.,  F.  &  Co.,  Mr.  Wads  worth  inquired  of  him  about  a 
charge  of  $13,000  made  to  him  for  a  portion  of  the  assets  of 
C.  N.  H.  &  Co.,  and  wished  to  know  if  that  had  not  been 
charged  twice,  and  he  told  him,  no  ;  that  it  was  passed  through 
both  sets  of  books,  but  it  resulted  only  in  one  charge  ;  and  he 
replied,  'how  about  the  balance?'  (which  witness  interpreted, 
if  anything  had  been  twice  or  wrongfully  charged.)  I  replied 
to  him,  '  no,  unless  a  matter  of  interest.'  (Int.  19).  He  made 
no  reply,  that  I  remember.  This  was  between  the  1st  of  Feb- 
ruary and  July,  1862,"  (more  than  a  year  before  he  filed  his 
bill  of  complaint). 

On  page  577,  int.  34,  he  further  testifies,  "  that  beside  the 
said  annual  statements,  there  Avere  trial  balances  made  out 
quarterly,  and  at  the  end  of  each  year,  after  the  books  were 
balanced,  which  could  be  seen  at  any  time.  The  last  trial  bal- 
ance showed  the  condition  of  the  books  of  the  firm  after  the 
different  profit  and  loss  accounts  had  been  closed  into  stock, 
and  also  the  private  account  of  the  partners  charged  up  to 
stock." 

On  page  594,  cross  46,  he  testifies  "that  the  debit  balance 
of  interest  to  the  account  of  complainant,  on  the  1st  of  Feb- 
ruary, 1862,  OR  the  books  was  £7,961.60." 


5T 

On  page  591-2,  int.  G4  and  65,  he  testifies,  that  the  said 
'  Exhibit  A,'  (on  page  44  to  Mr.  Spink's)  is  made  up  as  follows: 

The  credit  of  $28,842.46  was  derived  from  one-fourth  of  the 
merchandise  on  hand  February  1st,  1857,  and  the  credit  of 
$10,419  was  derived  f.'om  collections  from  the  assets  of  C.,  W. 
<fi  Co..  No.  2,  and  that  the  charge  of  $12,097.02  to  Wads- 
worth  in  said  "  Exhibit  A"  was  interest  charged  to  him  on 
shnrlt!'-.-  of  capital ;  but  there  was  an  error  made  in  Wads- 
worth's  favor  in  casting  the  interest.'1''  (See,  also,  Simeon  Far- 
well's  testimony,  on  page  624,  int.  10,  11  and  12.) 

From  all  this  testimony,  how  could  the  complainant  help 
knowing  that  his  account  was  relatively -Ip***?  than  his  part- 
ners  ?  How  could  he  help  knowing  of  his  interest  account  in 
said  exhibit  ?  How  could  he  help  knowing  all  about  the  books 
of  account?  How  could  he  help  knowing  of  the  division  of 
said  merchandise  ? 

"  To  conclude  that  he  did  not  know,  Ave  must  first  conclude 
in  opposition  to  the  evidence  that  the  complainant  was  more 
stupid  than  his  best  friends  are  willing  to  allow.  This  Court 
cannot  come  to  any  other  conclusion  than  that  he  did  know 
or  might  have  known  just  how  all  matters  of  account  stood  in 
the  books,  and  that  he  also  knew  how  his  account  stood  rela- 
tively to  that  of  his  partners,  and  that  his  allegations,  last  above 
referred  to,  he  knew  were  untrue  ;  and  he  knows  as  well,  that 
the  defendants'  replies  thereto  are  true.  The  evidence  prove 
their  replies  true. 

SIXTH    ALLEGATION. 

On  page  15,  complainant  further  alleges,  "that  he  never  dis- 
"  covered  his  mistake, — (that  is,  that  his  account  was  relatively 
"  overdrawn)  until  he  caused  the  books  of  said  firm  of  C.,|F. 
&  Co.,  to  be  examined,  (to  wit,  in  March,  1863.") 

Mark  this  language !  "  He  never  discovered  his  mistake 
until  he  caused  the  books  of  said  firm,  to  be  examined."  He 
does  not  charge  fraud  upon  Cooley  and  Farwell,  or  either  of 
them,  or  that  they  or  either  of  them  knowingly  deceived  him ; 
bat  that  he  (complainant)  made  a  mistake  when  he  examined 
the  books,  in  not  discovering  that  his  account  was  not,  rela- 
tively, overdrawn.  What  is  more  clearly  presented  in  this  al- 
legation, than  the  fact,  that  before  he  made  said  agreement  of 
January  21,  1862,  he  examined,  for  himself,  the  said  books  of 
account  ?  The  language  he  employs  leaves  no  doubt  of  it.  If, 


58 

then,  his  account  was  in  fact  overdrawn,  he  did  not  even  make 
the  mistake  he  claims  he  did.  What  if  he  did  make  a  mistake 
in  his  figures  when  he  examined  the  said  books  of  account ;  it 
is  his  own  and  not  theirs,  and  he  is  responsible  for  it.  But  the 
evidence  shows  that  he  was  largely  overdrawn.  If  he  made 
a  mistake,  it  was  not  because  the  channels  of  information  were 
not  open  to  him.  No  one  pretends  to  say  that  they  were  not. 
Are  we  to  presume,  then,  that  he,  in  his  examination  into  the 
condition  of  the  firm  and  into  his  private  account  and  that  of 
his  partners,  when  he  made  this  agreement  of  the  21st  of  Jan 
tiary,  1862,  that  he  made  a  mistake,  and  that  from  his  examin- 
ation of  the  books  he  supposed  his  private  account  was  rela- 
tively larger  than  his  partners,  and  that  in  this  he  was  mis- 
taken ?  And  for  this  reason,  is  this  Court  to  interfere,  and  set 
this  agreement  aside  ? 

The  defendants,  in  their  answer,  deny  that  the  complainant 
even  made  a  mistake,  as  to  the  relative  rights  of  the  partners, 
or,  as  to  his  private  account,  relatively,  to  theirs  ;  and  insist 
that  complainant,  upon  his  own  judgment,  after  a  lull  examina- 
tion of  his  account  and  rights  relatively  to  that  of  his  partners, 
he  made  the  said  agreement. 

For  the  truth  and  falsity  of  these  opposing  positions,  we 
will  call  especial  attention  of  the  Court  to  the  declarations  of 
the  complainant  himself. 

On  page  18  of  his  bill,  he  says,  "  that  the  books  of  account 
of  said  firm  of  Cooley,  Farwell  &  Co.,  at  this  time  (when  said 
agreement  was  made,  to  wit :  21st  January,  1862,)  were  kept 
in  such  a  manner  as  to  give  color  to  the  representations  of  said 
Cooley  and  Farwell  that  your  orator  had  overdrawn  his  account 
with  said  firm,  and  your  orator  states  that  he  relied  upon  said 
representations.  And  on  the  21st  day  of 

Jamiary,  1862,  he  made  said  agreement  with  his  partners." 

By  this  allegation  he  states  two  things,  to  wit : 

1st.  "  That  Cooley  and  Farwell  made  certain  representa- 
tions to  him;"  and, 

2d.  "  That  the  books  of  account  of  said  firm,  at  that  time, 
Avere  kept  in  such  a  manner  as  to  give  color  to  the  said  repre- 
sentations." 

How  did  he  know  that  the  said  books  gave  color  to  the  truth 
of  said  representations,  if  he  did  not  examine  them  ?  How  is 
the  Court  to  ascertain,  in  the  absence  of  proof,  that  he  relied 


59 

ni  that  timr  wholly  upon  the  said  representations  ?  If  he  did, 
why  did  he  examine  the  books  at  all  to  see  whether  they  sup- 
ported or  not  said  representations  ?  This  shows  that  his  re- 
liance was  upon  the  books,  and  not  upon  what  Cooley  and  Far- 
well  may  have  said  to  him. 

Mi\  Spink  testifies  on  page  105,  cross  73,  "  that  the  books 
"  show  full  credit  to  each  partner  for  the  actual  capital  origin- 
"  ally  paid  into  the  first  firm  by  each  of  them.  They  show  full 
"  credit  for  the  share  of  profits  in  the  three  firms,  to  which 
each  was  entitled,  and  I  found  no  erroneous  charges,  other  than 
those  of  interest ;"  (which  witness  discovered  was  made  in 
favor  of  Wadsworth.) 

What  can  be  more  clear,  then,  than  that  when  Wadsworth 
made  said  agreement  of  the  21st  of  January,  1862,  he  made 
it  upon  the  basis  of  the  books ;  upon  the  basis  that  the  mer- 
chandise on  hand  at  the  close  of  the  second  firm  of  C.,  W.  & 
Co.,  were  divided  between  the  partners ;  in  the  ratio  of  profits 
to  wit:  half  to  Cooley,  and  a  quarter  each  to  Wadsworth 
and  Farwell ;  upon  the  basis  that  this  merchandise,  so  divided, 
was  to  be  put  into  the  firm  of  C.,  F.  &  Co.,  in  that  ratio  by 
each  of  the  partners,  as  so  much  capital  stock,  to  their  respect- 
ive credits ;  and  upon  the  basis  that  interest  was  to  be  charged 
and  credited  upon  deficiency  and  overplus  of  capital  in  that 
firm  from  the  capital  agreed  upon,  and  upon  the  sums  drawn 
by  the  partners  for  private  use. 

But,  strange  to  say,  he  pretends,  and  so  alleges,  that  he  did 
not  know  of  the  division  of  goods  in  the  ratio  of  profits,  while 
in  the  face  of  this  allegation,  w*,  ton  page  148,  "Exhibit  No.  2" 
attached  Mr.  Spink's  depositionTtne  stock  note  given  by  Wads- 
worth  to  Cooley,  Wadsworth  &  Co.,  in  the  sum  of  $40,000 ; 
and  upon  its  back  there  is  an  endorsement  as  follows :  "  Received 
hereon,  March  1,  1854,  in  merchandise,  §28,842.35  ;"  and  this 
Mr.  Spink  informs  us  is  Mr.  Wadsworth' s  share  of  the  merchan- 
dise then  on  hand  from  the  former  firm,  divided  in  the  ratio  of 
profits  between  the  said  partners.  More  than  this,  similar  en- 
dorsements were  made  on  the  stock  notes  of  Cooley  &  Far- 
well  by  the  division  of  said  goods  in  the  same  ratio.  (See  ex- 
hibits Nos.  1  and  3  to  Spink's  deposition  on  page  148.)  By 
reference  to  '•'•Exhibit  A"  to  Mr.  Spink's  deposition  on  page 
44,  it  will  be  seen  that  the  merchandise  on  hand  at  the  close  of 
the  second  firm  of  Cooley,  Wadsworth  &  Co.  was  divided  be- 


60 

tween  the  partners  in  the  ratio  of  profits,  and  that  Wadsworth 
received  credit  upon  his  capital  stock  in  the  firm  of  Cooley, 
Farwell  &  Co.,  one-quarter  of  the  same,  to-wit,  $28,842.46. 
This  "exhibit  A"  was  in  Wadsworth's  possession  at  the  tune, 
and  he  voluntarily  brings  it  forward  and  makes  it  evidence, — 
not,  to  be  sure,  to  prove  that  he  knew  of  the  said  division  of 
merchandise  in  the  ratio  of  profits,  nor  to  prove  that  he  knew 
of  the  said  chai-ge  of  interest  upon  his  deficit  of  capital,  con- 
tained in  said  exhibit,  but  nevertheless  it  does  prove  these  two 
things.  It  is  true  that  by  this  exhibit  he  intended  to  make  it 
appear  that  it  and  the  books  did  not  agree  on  the  1st  of  Feb- 
ruary, 1862,  and  we  do  not  pretend  that  they  did ;  but  we  do 
say,  and  so  does  Mr.  Spink,  that  said  "exhibit  A"  and  the 
books  substantially  agreed  on  the  20th  of  January,  1862,  the 
day  before  the  said  agreement  was  made. 

That  the  complainant  made  a  mistake,  I  have  no  doubt ;  but 
it  was  not  as  he  would  have  this  court  believe,  in  his  relative 
position  in  the  firm  to  that  of  his  partners,  and  their  respective 
accounts.  He  then  understood  what  his  standing  and  rights 
were  as  fully  as  now.  But  he  made  a  mistake,  and  the  ques- 
tion is  what  it  was.  Let  the  evidence  outside  of  the  bill  speak, 
as  well  as  the  bill  itself,  and  then  we  shall  know  what  it  was. 

On  page  620,  Int.  7,  John  H.  Dunham,  one  of  our  best  citi- 
zens, testifies  "that  complainant  stated  to  him  in  November, 
"1833,  as  the  reason  for  complainant's  retiring  from  the  said 
"  firm  of  Cooley,  Farwell  &  Co.,  that  the  future  was  so  uncer- 
"  tain  that  each  one  of  these  gentlemen,  himself,  (complainant) 
"  Cooley  and  Farwell,  were  each  desirous  of  retiring  from  bu- 
"  siness.  And  he  stated  in  connection  with  that,  that  it  was  a 
mistake  on  his  (Wadsworth's)  part  in  retiring  from  business." 
On  page  621,  Int.  9,  Mr.  Dunham  testifies  that  complainant 
farther  said  to  witness  that  "  the  uncertainty  of  commercial 
"  affairs  in  the  future  was  the  reason  he  assigned  for  his  retir- 
"ing;  that  in  their  negotiations,  his  partners  felt  very  much 
"  as  he  did."  On  page  620,  Int.  8,  fie  further  testifies,  "  that 
"  there  was  much  said  in  this  conversation  with  complainant 
"  upon  the  general  feeling  of  uncertainty  for  future  business." 
"  That  the  war  looked  very  much  like  terminating  the  January 
"  preceding  this  conversation.  Had  it  closed,  disaster  would 
"  have  overtaken  every  man  engaged  in  business.  He  asked 
"  ine  if  that  was  not  the  feeling.  I  told  him  it  was,  so  far  as 


61 

"  1  knew."  On  page  620,  Int.  5,  he  further  testifies,  "  that 
"  complainant  gave  him,  (witness),  the  impression  in  said  con- 
"  versation,  that  there  were  mistakes  made  by  Farwell  in  his 
"  manner  of  book-keeping."  On  page  621  Mr.  Dunham  testi- 
fies "  that  he  is  acquainted  with  complainant's  reputation  for 
"  ability,  for  sharpness,  for  shrewdness  and  cautiousness  as  ;v 
"  business  man  ;"  and  that  he  "  had  the  reputation  of  being  a 
•'  shrewd  and  a  sharp  business  man.  I  think  his  general  repu- 
"  tation  for  caution  was  fully  equal  to  the  average  of  business 
"  men." 

There  is,  then,  no  evidence  to  sustain  complainant's  allega- 
tion that  he  made  a  mistake,  except  in  that  of  his  judgment  in 
retiring  from  said  firm  of  C.,  F.  &  Co.  And  it  will  be  remem- 
bered that  at  the  time  he  made  this  said  agreement,  he  had,  in 
fact,  by  the  terms  of  the  copartnership  agreement,  only  ten 
days  longer  to  remain  in  business  with  his  partners  ;  so  that  in 
fact  his  interest  in  the  firm  was  confined  to  his  share  in  the  di- 
vision of  assets,  and  the  fact  that  at  that  time  the  said  firm  was 
owing  about  $430,000,  and  its  unrealized  assets  amounted  to 
only  $512,000.00  (see  Spink  testimony,  page  70,  cross-int.  29), 
it  became  a  matter  of  great  moment  with  Wadsworth,  in  the 
then  unsettled  prospects  of  business,  to  shirk  the  labor  and  re- 
sponsibility of  raising  this  large  amount  of  money  to  pay  said 
debts  with,  and  to  throw  said  labor  and  responsibility  upon 
Cooley  &  Farwell ;  and  this  it  was,  in  fact,  that  induced  the 
complainant  at  that  time  to  make  the  agreement  Tie  did]  and 
his  allegation  to  the  contrary  is  wholly  unsupported  and  untrue. 
SEVENTH  ALLEGATION. 

On  page  15,  complainant  further  alleges,  "  that  Simeon  Far- 
"  well  and  Marshall  Field  were  partners  in  the  said  firm  of 
"  Cooley,  Farwell  &  Co.,  and  that  Field  was  to  receive  one- 
"  eighth  of  the  profits." 

The  defendants  deny  this  allegation,  and  say  that  they  were 
clerks,  receiving  a  salary  from  the  said  firm. 

The  testimony  of  Simeon  Farwell,  on  page  623,  Int.  6,  puts 
this  part  of  the  controversy  to  rest.  He  says  "  that  partners 
in  the  firms  of  C.,  W.  &  Co.  Nos.  1  and  2,  and  C.,  F.  &  Co. 
were  Cooley,  Wadsworth  and  John  V.  Farwell."  Mr.  Leiter 
testifies,  on  page  571,  Int'ys  3,  4  and  5,  "  that  the  firms  of  C., 
W.  &  Co.  and  C.,  F.  &  Co.  were  composed  of  Cooley,  Wads- 
worth  and  John  V.  Farwell."  Mr.  Spink  testifies,  on  page  214 


62 

ci'oss  int.  167,  "  that  Mr.  Field  does  not,  from  [the  books  nor 
from  the  articles  of  copartnership,  appear  to  have  been  a  part- 
ner. He  was  not  credited  with  profits  nor  charged  with  losses." 
There  is  no  proof  that  either  Simeon  Farwell  or  Marshall  Field 
were  partners  in  said  firm ;  but  on  the  contrary,  there  is  posi- 
tive testimony  showing  beyond  all  controversy,  that  they,  (Si- 
meon Farwell  and  Marshall  Field),  nor  either  of  them,  were 
ever  partners.  If  Simeon  Farwell  and  Field  were  partners, 
why  were  they  not  parties  to  the  said  agreement  of  the  21st  of 
January,  1862  ?  This  fact  shows  that  the  complainant  was 
not  in  ignorance  upon  their  positions  and  relations  to  said  firm, 
but  he  thought  he  could  make  something  by  this  allegation  by 
way  of  making  out  his  ignorance  of  facts  and  perhaps  his  own 
imbecility. 

EIGHTH  ALLEGATION. 

On  page  16  complainant  states,  "that  said  firm  of  C.,  F.  & 
"  Co.  continued  their  business  down  to  the  9th  day  of  January, 
"  1862,  at  which  time  said  firm  had  large  assets  in  bills  receiv- 
"  able,  choses  in  action,  real  estate  and  merchandise  and  other 
"  property,  all,  except  the  capital  stock  of  said  firm,  being  the 
"  fruit  of  the  aforesaid  copartnership  (C.,  F.  &  Co.)  business, 
"  and  all  belonging  to  the  aforesaid  copartnership  (C.,  F.  & 
"  Co.)  business,  and  all  belonging  to  the  aforesaid  copartners 
"  (to-wit,  Cooley,^  Wadsworth,  Field,  John  V.  Farwell  and 
"  Simeon  Farwell)  in  proportions~'provided  for  in  said  copart- 
"  nership  articles.  And  on  the  said  9th  day  of  January,  1862, 
"  said  Cooley  and  John  V.  Farwell  caused  an  account  of  stock 
"  to  be  taken,  and  that  the  said  firm  then  had  on  hand  in  mer- 
"  chandise  $161,041.89  at  invoice  price  as  part  of  the  assets, 
"  and  that  date  a  great  change  had  begun  to  take  place  in  the 
"  relative  value  of  goods  and  money — goods  began  steadily  to 
"  advance,  and  the  said  merchandise  was  the  most  desirablo 
"  part  of  the  assets.  And  that  up  to  this  time  Cooley  &  Far- 
"  well  were  familiar  with  all  the  details  of  the  business  and 
"  that  complainant  was  wholly  ignorant  of  the  books  of  account 
"  and  the  relative  condition  of  the  private  account  of  the  part- 
"  ners  and  of  the  condition  of  the  business,  and  that  he  had  no 
"  information  upon  any  of  these  subjects,  except  as  he  derived 
"  it  from  the  statements  of  his  partners." 


63 

From  the  review  already  had,  it  will  be  remembered,  that 
we  have  discussed,  or  rather  considered  the  evidence,  showing 
that  neither  Simeon  Fanvell  or  Marshall  Field  were  partners 
in  the  said  firm  of  C.,  F.  &  Co.,  and  also  showing  complainant 
had  knowledge  of  the  books  of  account,  or  might  have  had, 
and  also  of  his  account  relatively  to  that  of  his  partners  and 
that  the  same  was  relatively  largely  overdrawn,  and  that  com- 
plainant's allegation  of  ignorance  upon  the  matters  aforesaid, 
the  evidence  shows  to  be  a  mere  pretence,  and  therefore,  upon 
these,  I  shall  not  spend  any  more  time,  but  will  take  up  those 
portions  of  this  allegation,  which  we  have  not  considered. 

The  defendants  in  their  answer  admit,  that  said  firm  con- 
tinued till  the  9th  day  of  January,  1862,  and  at  that  time  had 
large  assets ;  but  they  state  that  at  that  time,  the  said  firm  was 
indebted  to  sundry  persons  in  about  the  sum  of  8430,000. 
They  also  admit  that  at  that  time  an  invoice  was  taken,  and 
that  there  was  found  to  be  on  hand  at  invoice  price  merchan- 
dise (including  store  furniture  and  fixtures) — to  the  amount  of 
$161,041.89.  But  defendants  deny  that  at  that  time  a  great 
change  began  to  take  place  in  the  relative  value  of  goods  and 
money,  and  they  deny  that  from  that  time  goods  began  steadily 
to  advance ;  and  insist  that  there  was  great  uncertainty  in 
regard  to  future  business  everywhere. 

There  is  then  but  two  statements  in  this  allegation,  that  have 
not  been  either  reviewed  under  the  evidence,  or  admitted  by 
the  defendants,  and  these  are  as  follows  : 

1.  The  complainant's  charge,  that  a  great  change  began  to 
take  place  in  the  relative  value  of  money  and  merchandise ;  and 
2d,  that  merchandise  from  the  9th  of  January,  1862,  began 
steadily  to  advance.  These  statements  defendants  deny.  Let 
the  evidence  decide. 

On  page  428,  int'y  5,  Thomas  L.  Rushmore,  a  Avholesale 
merchant  in  New  York  for  22  years,  testifies  that  on  the  21st 
day  of  Januaiy,  1862,  that  the  value  of  broken  stocks  of 
goods  in  New  York,  "  would  depend  somewhat  upon  the  char- 
"  acter  of  the  stock ;  a  stock  such  as  is  ordinarily  kept  up  by  a 
'  dry  goods  jobber,  broken,  I  think  at  that  time  would  be 
"  worth  from  70  to  75  cents  on  a  dollar  from  cost,  on  the  sup- 
"  position  that  the  stock  had  been  well  bought." 

On  pages  429  and  430,  int'y  11,  12,  13,  he  testifies,  that  at 
this  time  "  there  was  a  great  deal  of  uncertainty  felt  by  busi- 


64 

"  men  in  regard  to  the  future ;  there  had  been  but  little  advance 
"  in  wollens,  Yankee  notions  and  dress  goods,  and  I  do  not 
"  think  it  was  generally  supposed  that  the  advance  in  do- 
"  mestics  would  be  maintained.  There  had  been  a  great  many 
"  failures  in  New  York,  some  of  the  most  prominent  houses. 
"  The  causes  of  a  general  prostration  of  business,  were  the 
"  failures  of  the  south  to  pay  debts  due  to  the  north  and  of 
"  northwest  to  pay  debts  due  to  New  York. 

On  the  cross-examination  by  complainant,  page  431,  int'y  7 
he  testifies,  "that  in  Sept.  17,  1861,  at  which  time  Rushmore, 
"  Cane  &  Co.  sold  their  stock  of  merchandise  in  New  York,  he 
"  did  not  consider  said  stock  worth  (as  the  question  implied) 
"  90  cents  on  the  dollar,"  and  then  adds,  "  AVC  offered  our  stock 
u  in  February,  1864,  at  90  cents  on  a  dollar,  but  failed  to  find  a 
"  purchaser  at  that  rate.  We  sold  our  stock  of  Yankee  notions 
"  at  70  cents  on  a  dollar."  In  answer  to  the  10  cross  int'y,  he 
says,  "  that  the  bulk  of  our  stock  was  staple  goods  and  we  had 
"  a  small  stock  of  unseasonable  fancy  goods." 

Henry  S.  Hart,  also  an  old  New  York  merchant,  on  page 
433,  int'y  4,  testifies,  "  that  the  comparative  value  of  foreign 
"  goods  in  the  New  York  market  in  January,  1862,  as  compared 
"  with  their  value  from  July  to  November,  1861,  was  essentially 
"  the  same.  There  had  been  a  slight  advance  in  a  few  articles 
"  and  a  decline  in  others ;"  on  page  434,  int'y  5,  6,  7  and  9,  he 
says,  "  that  he  was  acquainted  with  the  financial  condition  of 
"  wholesale  merchants  in  New  York  and  the  northwest  during 
"the  year  1861,  and  up  to  the  21st  January,  1862,  and  that 
"  the  causes  of  such  embarrassment  and  imcertainty  as  to  the 
"  future,  was  the  failure  of  their  customers  in  the  south  and 
"  west,  which  caused  quite  a  number  of  failures." 

Lorenzo  G.  Woodhouse,  on  pages  436,  437,  438-9  and  int'y 
3,  4,  5,  8,  11  testifies,  "  that  the  value  of  a  general  job- 

"  bing  stock  of  dry  goods  and  Yankee  notions  on  sthe  21st  of 
"  January,  1862,  would  be  worth  in  New  York  about  75  cents 
"  on  the  dollar.  If  it  was  a  broken  stock,  one-sixth  of  Yankee 
"  notions,  one-fourth  wollen  goods,  one-sixth  foreign  goods 
"  and  the  balance  in  domestic  goods,  one-fourth  of  which  com- 
"  posed  of  seasonable  goods,  it  would  not  be  worth  over  70 
"  cents  on  the  dollar.  My  judgment  is  based  upon  my  knowl- 
"  edge  of  goods  and  from  sales  of  such  stocks  in  this  market. 
"  I  was  acquainted  with  the  general  feeling  of  merchants  in 


65 

"  New.  York  during  the  fall  and  winter  of  1861-2  in  regard  to 
"  business  and  its  future  prospects.  They  were  very  des- 
"  pondeut,  and  the  prospect  was  very  gloomy  to  all  business 


Thomas  JSinier,  on  page  532,  int.  14,  testifies,  "that  the 
"  stock  of  goods  of  Cooley,  Farwell  &  Co.,  on  the  21st  of 
"  January,  1862,  was  worth  from  70  to  80  cents  a  dollar,  but 
"  thinks  not  over  75  cents." 

On  page  536,  int.  26,  27,  he  says,  "My  assignee  sold  my 
"  stock  of  dry  goods  on  the  30th  of  January,  1862,  to  R.  M. 
"  Whipple,  at  40  cents  on  the  original  cost  of  the  goods.  It 
"  was  a  general  stock  of  dry  goods.  Before  the  sale,  the  stock 
"  had  been  advertised  extensively  in  the  papers  for  sale  (28. 
"  Every  effort  was  made  to  sell  the  stock,  and  the  highest  price 
"  in  cash  was  obtained  for  the  same." 

On  page  543,  int  33,  he  says,  "  when  a  whole  stock  is  sold 
"  at  a  time,  like  that  of  C.,  F.  &  Co.'s,  it  is  usually  sold  at  a 
"  much  less  price  than  when  a  purchaser  is  permitted  to  select 
"  therefrom." 

On  page  544,  int.  34,  he  testifies,  "that  from  the  close  of 
"  the  fall  purchases  in  1861,  up  to  the  ensuing  spring,  there 
"  was  a  depreciation  of  from  20  to  30  per  cent,  on  many  kinds 
"  of  goods.  The  cause  of  the  depreciation  (int.  35)  was  from 
"  a  general  want  of  confidence  in  the  prices  of  goods  at  that 
time.  I  was  among  merchants  at  that  time  a  good  deal  (int. 
"  36)  and  found  among  them  a  general  impression  that  the 
"  prices  would  not  be  maintained." 

On  page  547,  in  answer  to  the  51st  cross-int'y  by  complain- 
ant, he  says,  "  to  the  New  York  cost  of  goods  must  be  added 
"  freight,  exchange,  cartage  and  insurance,  to  ascertain  the 
"  cost." 

On  page  563,  int.  7,  John  K.  Harmon  testifies,  "  that  it  was 
"  our  habit  (meaning  the  habit  of  himself  as  the  clerk  whose 
"duty  it  was  to  mark  the  goods  for  sale,)  and  rule  to  always 
"  mark  them,  (the  goods)  at  least  5  per  cent,  above  the  New 
"  York  cost,  with  the  exception  of  a  few  staples." 

On  page  566,  in  answer  to  cross-int.  21,  he  says,  "  all  dam- 
"  aged  goods  were  invoiced  at  cost." 

On  page  563,  int.  8,  he  says,  "  the  said  stock  of  goods  in- 
"  voiced  on  the  Oth  of  Januaiy,  1862,  were  invoiced  at  the 
"  marked  prices." 

9 


66 

On  page  564,  int.  14,  he  says,  "the  difference  between  the 
"  value  of  the  said  stock  of  goods  so  invoiced  on  the  9th  of 
"January,  1862,  and  a.  fresh,  seasonable  stock  of  goods  of  new 
"  styles  and  patterns,  would  be  from  25  to  30  per  cent." 

Roger  J.  Brass,  on  page  550,  int.  10,  testifies,  "  that  the  said 
"stock  of  C.,  F.  &  Co.,  on  the  21st  of  January,  1862,  was 
"  worth  from  75  to  80  cents  on  the  dollar.  When  1  say  cost 
"  I  mean  the  original  cost  of  the  goods,  or  what  it  cost  the 
"  house  to  buy  it."  (Int.  12.) 

On  page  552,  int.  18,  he  says,  "  as  near  as  I  can  recollect, 
"  there  was  not  much  change  in  the  market  (as  to  the  value  of 
"goods)  from  the  1st  of  January  until  towards  the  middle  or 
"  latter  part  of  February,  but  after  that  time  there  was  a  de  - 
"  cline  of  about  15  or  20  per  cent,  in  certain  kinds  of  goods, 
"  and  the  market  continued  unsettled  until  in  the  course  of  the 
"  summer,  when  there  was  some  advance." 

"  On  page  544,  int.  23,  he  says,  "  the  difference  of  value 
"  between  a  fresh  and  seasonable  stock  of  goods  of  new  styles 
"  and  the  said  stock  of  C.,  F.  &  Co.,  would  be  about  25  per 
"  cent." 

On  page  536,  in  answer  to  the  cross-in t'ys  8-9-10,  by  com- 
plainant, he  says,  "  that  shortly  before  the  date  of  said  inven- 
"  tory,  standard  sheetings  advanced,  but  he  could  not  say  hoAV 
"much;  and  there  was  some  advance  in  other  kinds  of  do- 
"  mestic  goods,  but  not  very  large,  which  was  partially  lost  in 
"  the  spring ;  outside  of  certain  domestic  cotton  goods  and 
"  prints,  there  had  not  been  any  material  advance  from  what 
"  they  were  the  fall  previous." 

R.  M.  Whipple,  on.page  646,  int.  6,  testifies  "  that  the  said 
"  stock  of  goods  of  C.,  F.  &  Co.,  on  the  21st  of  January,  1862, 
"  was  not  worth  to  exceed  75  cents  on  the  dollar  on  the  orig- 
"  inal  cost.  The  feeling  of  Chicago  merchants  at  this  time,  as 
"  to  the  future  prospects  of  business,  were  very  much  de- 
pressed." (See  int.  11.) 

Thomas  B.  Carter,  on  page  539,  cross  14,  in  answer  to 
the  question,  "How  much  less  are  broken  packages  worth 
to  jobbers,  than  original  packages  ?"  replies,  "  If  pieces  and 
"  dozens  are  not  cut  or  broken,  the  stock  would  be  worth  from 
"  5  to  15  per  cent,  less,  but  where  dozens  or  pieces  are  broken 
"  or  cut,  the  stock  would  be  -worth  from  25  to  30  per  cent. 
"  less." 


67 

In  answer  to  the  18th  cross-int.,  ho  says,  "  that  from  75  to 
*'  90  per  cent,  of  a  jobber's  stock  consists  of  broken  packages." 

On  page  543,  int.  32,  he  says,  "  that  said  firm  of  C.,  F.  & 
Co.,  cut  pieces  and  broke  packages  that  came  by  the  dozen." 
And  in  answer  to  the  33d  int.,  he  says,  "  A  whole  stock,  like 
C.,  F.  &  Co.'s,  when  sold  en  mass,  usually  sells  at  a  much  lower 
price." 

In  answer  to  the  34th  int.,  he  says,  "that  the  depreciation 
*'  of  goods,  after  the  close  of  fall  purchases  in  1861,  and  in  the 
"  spring  following,  was  from  20  to  30  per  cent,  on  many  kinds 
"of  goods.  (35  int.)  The  cause  of  such  depreciation  was 
"  from  a  general  want  of  confidence  in  the  prices  of  goods  at 
"  that  time,  and  that  the  general  impression  among  business 
"  men  at  that  time,  was  that  the  prices  would  not  be  main- 
tained." (Ans.  to  36  int.) 

In  answer  to  the  37th  int.,  he  says,  "the  breaking  of  pack- 
"  ages,  the  selection  of  the  choicest  styles  from  the  same, 
"  leaves  the  balance  of  the  stock  of  much  less  value  than  the 
"  original  stock." 

John  K.  Harmon  testifies,  (seepages  563-4,  int.  11,  12,  13, 
14,)  "  that  styles  and  patterns  of  fancy  dress  goods,  including 
"  prints,  change  from  season  to  season,  and  that  there  was 
"  quite  a  large  amount  of  unseasonable  and  old  styles  in  the 
"  stock  of  C.,  F.  &  Co.,  on  the  2 1st  of  January,  1862,  and  that 
"  he  was  thoroughly  acquainted  with  said  stock  transferred  to 
"  Cooley  and  Farwell,  and  that  the  'difference  in  value  between 
"  the  said  stock  so  transferred  to-C.  &  F.,  and  a  fresh,  season- 
"  able  stock  of  new  styles  and  patterns,  suited  to  the  Chicago 
"  market  at  that  time,  would  be  from  25  to  30  per  cent." 

On  the  cross-examination,  (page  564,)  he  says  :  "  I  have 
"  acted  as  salesman  for  the  last  ten  years,  and  had  the  super- 
"  vision  of  the  stock,  and  that  he  has  had  some  experience  as 
"  a  buyer,  in  Chicago,  to  a  limited  extent.  The  damaged 
"  goods  were  all  invoiced  at  cost." 

Thomas  L.  Rushmore  testifies,  (see  page  429,  int'y  9)  that 
at  the  time  last  mentioned,  "  I  should  think  unseasonable  fancy 
"  goods  would  be  at  from  35  to  45  per  cent,  discount  from 
.  "  cost,  and  unseasonable  staple  goods  from  25  to  30  per  cent. 
"  discount  from  cost."  (Int'y  1 1).  There  was  a  great  deal 
"  of  uncertainty  (at  this  time)  felt  by  business  men  in  regard 
"  to  the  future." 


68 

H.  S.  Hart  testifies  (see  page  434-5,  int'y  5,  6,  7,  8,)  that 
during  the  year  1861,  and  up  to  January  21, 1862,  the  financial 
condition  of  wholesale  merchants  in  New  York  and  the  north- 
west, "  was  embara'ssrnent  and  uncertainty  as  to  the  future." 
There  was  quite  a  number  of  failures.  In  answer  to  the  2d 
cross  int'y  by  complainant,  he  says,  "  that  the  stock  of  Gas- 
"  herie  &  Davis,  "  sold  at  65  cents,  in  September,  1861.  It  was 
"  a  general  stock — (that  is  a  wholesale  stock)." 

Lorenzo  G.  Woodhouse  testifies  (see  page  437  and  439,  int'y 
7,  8,  9,  11),  that  the  comparative  value  of  a  broken  stock  of 
goods  on  hand,  at  the  time  above  named,  and  a  fresh  stock 
purchased  expressly  for  the  season  next  ensuing,  would  be 
"  about  30  per  cent. ;  one  reason  (for  this)  would  be,  you  would 
"  have  to  carry  a  large  stock  of  unseasonable  goods  for  six 
"  months,  and  out  of  style ;  and  there  are  goods  in  a  stock  of 
"  that  kind,  which  carried  from  year  to  year,  if  sold,  would 
"  have  to  be  disposed  of  at  a  sacrifice.  The  longer  they  are 
"  carried,  of  course,  the  greater  the  loss  on  them.  I  base  my 
"judgment  on  my  knowledge  of  goods,  and  also  from  sales  of 
"  such  stocks  in  this  (New  York)  market.  The  general  feeling 
"  in  New  York  during  the  fall  and  winter  of  1861-2  in  regard 
"  to  business  and  its  future  prospects,  were  very  despondent, 
"  and  the  prospect  was  very  gloomy  to  all  business  men." 

From  this  testimony,  we  can  come  to  but  one  conclusion, 
to-wit,  that  at  the  time  of  the  date  of  the  said  agreement,  to- 
wit,  the  "  21st  day  of  January,  1862,"  goods,  as  a  whole,  like 
those  kept  by  the  said  firm,  were  not  "  steadily  advancing," 
nor  were  they  considered  at  that  time  "  the  most  desirable  por- 
tion of  the  assets  of  the  said  firm."  Not  only  must  the  broken 
condition  of  said  stock  of  goods  be  taken  into  account,  and  also 
the  old  styles  and  old  patterns,  but  we  must,  as  far  as  possible, 
in  order  to  form  a  correct  judgment,  place  ourselves  back  to 
that  time,  and  in  the  place  of  a  wholesale  merchant  with  a 
stock  on  hand  and  with  an  immense  debt  to  pay,  and  then  con- 
template the  future  from  the  then  condition  of  our  country — a 
Avar  raging  in  our  midst,  that  had  no  parallel  in  the  ages  past. 
Our  army  and  navy,  though  made  up  of  the  best  and  the 
bravest  men  in  the  world,  had  met  with  little  else  but  defeat. 
Manassas  Junction,  Fort  Donelson,  and  Fort  Henry  in  the 
possession  of  a  strong  and  a  fortified  enemy,  and  our  noble 
army  of  the  Potomac  refusing  to  "move  upon  the  enemy's 


09 

works."  Our  whole  country  and  people,  and  their  representa- 
tives in  Congress,  all  disheartened  and  muttering  in  secret 
their  discontent;  and  at  the  same  time,  the  monarch's  of  the 
old  world  plotting  and  planning  the  best  Avay  to  secure  a  divi- 
sion^ of  our  national  union,  were  counting  the  days  when 
they,  one  and  all,  would  recognize  the  independence  of  those 
in  rebellion  to  our  government.  At  such  a  time  as  this,  with 
such  prospects  in  view,  is  it  strange  that  the  commercial 
interests  of  our  whole  country  should  experience  such  a  des- 
pondency as  said  witnesses  have  testified  to  ?  Is  it  strange, 
that  merchants  should  feel  that  there  was  no  certainty  for 
business  in  the  future.  Is  it  surprising  that  the  said  com- 
plainant and  the  defendants,  Cooley  and  Farwell,  one  and  all, 
desired  to  close  up  their  business,  as  Mr.  Dunham  testifies  they 
did,  from  his  said  conversation  with  complainant  ?  What  is 
most  surprising  of  all  is,  that  any  one  at  that  time  had  the 
nerve  to  proceed  on  in  business  !  Cooley  and  Farwell  had  the 
nerve,  it  is  true,  and  why  ?  Simply  because  they  had  over 
$400,000  of  said  firm's  indebtedness  to  pay.  It  rested  at  that 
time  wholly  upon  them.  Wadsworth  could  not  render  any 
assistance.  It  must  be  paid  or  they  would  surely  become  hope- 
lessly bankrupt.  To  do^  this,  they  were  obliged  to  resort  to 
desperate  means  and  undertake  great  responsibilities.  To  sit 
still,  was  certain  ruin.  Wadsworth  had  no  money  and  but 
little  credit.  The  whole  responsibility  was  upon  Cooley  and 
Farwell;  and  they  had  but  this  alternative.  They  were  forced 
to  resolve  to  take  the  responsibility  and  to  make  the  effort.  For 
the  first  six  months  goods  declined,  and  they  stood  upon  the 
balance — not  knowing  which  way  it  would  turn — putting  forth 
all  their  energies  and  bringing  to  their  assistance  the  help  of 
all  their  personal  friends.  The  scale,  after  from  six  to  ten 
months,  turns  fortunately  in^their  favor,  and  they  succeeded  in 
paying  this  vast  indebtedness,  after  having  been  obliged  to 
borrow  or  loan  over  $200,000.  From  that  time  until  now  they 
have  been  successful,  and  they  have  doubtless  made  money — 
some  say  they  have  become  rich.  If  they  have  I  am  glad  of  it, 
for  they  richly  deserve  such  success ;  and  because  they  have, 
under  these  circumstances,  succeeded,  surmounting  all  obstacles, 
taking  all  responsibility  from  Wadsworth,  he  now  comes  into 
this  Court  and  asks  it  to  give  to  him  their  hard  earned  gains, 
without  labor  or  compensation  on  his  part.  His  baby  cry  of 
ignorance  and  trust,  merits  only  the  severest  reprimand. 


70 

But  let  us  examine  into  the  considerations  named  in  the  said 
agreement,  and  see  whether  complainant  has  sustained  as  great 
a  loss,  in  comparison  with  his  said  partners,  as  he  pretends  to 
have  done. 

The  goods  taken  by  Cooley  &  Farwell,  under  the  said  agree- 
ment, on  the  21st  day  of  January,  1862,  at  the  invoice  price, 
including    the    store    furniture    and    fixtures, 
amounted  to  $161,041.89 

Mr.  Harmon  testifies,  on  page  567,  int'y  15, 
"  that  the  store  furniture  was  included  in  this 
amount,  and  that  the  same  amounted  to  the 
sum  of  $3,542.00,  and  that  its  cash  value  at 
that  time  was  not  more  than  $2,000.00.  Now, 
deduct  the  invoice  price  of  the  furniture  from 
the  invoice  price  of  the  goods  charged  to 
Cooley  &  Farwell,  to  wit:  3,542.00 


and  we  have  the  true  amount  of  goods,  to  wit :        $157,499.89 
It  has  been  clearly  shown  by  the  evidence  that 
these  goods,  at  that  time,  in  fact,  were  not 
worth  more  than  75  per  cent,  of  the  said  in- 
voice price,  which  would  produce  a  discount  of         $39,374.96 
Deduct  this  amount  of  discount  from  the  whole 

amount  of  goods,  and  we  have  the  true  value        

of  the  said  goods,  to  wit,  $118,124.92 

Add  to  this  the  true  value  of  the  furniture,  to  wit,  -     2,000.00 


and  we  have  the  true  value  of  said  invoice,  to  wit,  $120,124.92 

Take  from  the  whole  invoice,  to  wit,  $161,041.89 

the  true  value  of  the  same,  to  wit,         120,124.92 

and  we  find  the  loss  to  be  on  the 

said  invoice  to  Cooley  &  Farwell,  viz :  $40,916.97 

Under  the  said  article  of  copartnership,  this 

amount  of  loss  would  have  been  borne  by  the 

several    partners,  as   follows:      One-half  by 

Cooley,  or,  $20,458,49 

One-fourth  by  Farwell,  or,  10,229,24 

One-fourth  by  Wadsworth,  or,  10,229.24 

From  these  computations,  under  the  evidence,  it  is  plain  to  see 

that  Cooley  &  Farwell  lost  on  the  said  goods  the  full  sum  of 

$40,916.97,  and  Wadsworth  has  been  relieved  from  sustaining 


n 

any  portion  of  the  same,  though  his  share  of  it,  under  the  said 
original  copartnership  agreements,  was  one-fourth  of  the  whole 
amount — or  the  sum  of  $10,229.24.  To  offset  this  great  loss 
which  Cooley  &  Farwell,  under  the  said  agreement  of  the  21st 
of  January,  1863,  had,  or  were  liable  to  sustain  alone,  and  for 
the  further  consideration  of  the  great  undertaking  of  Cooley 
&  Farwell  to  pay  all  the  debts  of  Cooley,  Farwell  &  Co.,  then 
amounting  to  about  $430,000,  and  all  the  expenses  incident 
thereto,  with  the  balance  of  said  assets,  and  for  the  purpose  of 
equalizing  the  supposed  or  estimated  losses  incident  to  the  said 
remaining  assets,  and  to  equalize  the  rights  of  the  partners  by 
reason  of  the  failure  of  Wadsworth  to  pay  into  the  capital 
stock  of  the  said  firm  of  Cooley,  Farwell  &  Co.,  the  amount 
he  had  agreed  to  do,  with  the  said  losses  of  Cooley  &  Farwell 
and  to  recompense  them  in  part  for  their  services,  which  they 
had  rendered  under  the  said  copartnership  agreement,  it  was 
further  provided  by  the  partners  in  their  said  agreement,  that 
the  said  " remaining  assets"  after  the  payment  of  the  said 
debts  and  expenses  above  named,  should  be  divided  between 
the  partners,  "  according  to  the  pro  rata  amount  due  to  each" 
That  is,  in  the  ratio  of  the  nominal  balances  of  each  partner  in 
the  said  "  remaining  assets."  The  books  of  account  at  that 
time  made  the  nominal  amount  of  said  "  remaining  assets"  to 
be  $280,299.75,  and  the  nominal  pro  rata  share  of  the  several 
partners  therein  to  be  as  follows  : 

Cooley's   pro  rata  share,  due  him,  $128,497.14 

Farwell's    "       "         "         "     "  48,571.46 

Wadsworth's  "  "         "     "  103,231.15 

Mr.  Spink,  in  his  examination  of  the  said  books,  found  some 
errors,  principally,  however,  in  the  matter  of  casting  interest, 
the  balance  of  which  errors  he  found  to  be  largely  against 
Cooley  &  Farwell,  and  in  favor  of  Wadsworth.  In  his  cross- 
examination,  (pages  74-5,  c>ross-int.  31),  he  corrects  these  er- 
rors, and  which  corrections  change  the  said  balances  as  follows  : 

Cooley's  pro  rata  share,  due  him,  $120,168.25 

In  this  he  omitted  to  add  the  Wabash  Avenue 
building  account,  which  Mr.  Cooley  had  paid, 
and  which  amounted  to  7,943.06 

making  his  true  pro  rata  share  therein  due 
him,  to  be  {Carried  forward.]  $128,111.31 


72 

Brought,  forward.  $128,1 1 1.31 

Farwell's    pro   rata  share  due  him,         -  50,611.63 

Wadsworth's  «       "         "         "     "  100,722.44 

Add  these  several  balances  together,  and  we  find 
the  whole  amount  of  the  said  "remaining  assets" 
to  wit,  the  sum  of  $279,445.38 

Mr.  Leiter,  on  page  590,  cross  int.,  says  the  said 
"remaining  assets"  amounted  to  $278,467.29 

making  the  difference  between  their  calculations 

to  be  978.09 

Of  these  "  remaining  assets"  to  wit,  $279,445.38, 

there  has  been  charged  to  the  account  of  profit 

and  loss,  as  follows  : 

In  the  firm  of  Cooley,  Farwell  &  Co.,  about  $100,000.00 

in  the  firm  of  Cooley,  Wadsworth  &  Co.,  about         49,015,29 


making  the  total  amount  charged  to  loss,  $149,015.29 

(See  Mr.  Leiter's  testimony,  pj'.ge  582,  int.  59.) 
Now  let  it  be  borne  in  mind  that  under  the  said  agreement  of 
the  21st  of  January,  1863,  Cooley  &  Farwell  bore  their  pro 
rata  share  of  this  loss  with  Wadsworth,  in  the  ratio  of  their 
said  several  balances  or  their  said  interest  in  the  said  "  remain- 
ing assets,"  to  wit : 

Cooley  in  the  ratio  of  $128,111.31  to  $279,445.38. 
Farwell  in  the  ratio  of  $50,611.63  to  $279,445.38. 
Wadsworth  in  the  ratio  of  $100,722.44  to  $279,445,38. 
From  this  the  said  several  partners  are  found  to  sustain  a  loss, 
as  their  respective  shares  of  the  said  loss,  of  $149,015.29,  under 
the  said  agreement  of  the  21st  of  January,  1862,  as  follows  : 
Cooley's  share  of  the  same  is,          $68,315.84 

Add  to  this  his  share  of  the 

said  loss  on  the  said  goods  at 

invoice  price,  to  wit,  20,458.49 — 

and  we  find  he  sustains  a  loss  of  $88,774,33 

Farwell's  share  of  the  same  is,          $26,988.33 
and  his  share  on  said  goods  is,  20,458.48 — 

making  his  total  loss  to  be,  $47,446.81 

Wadsworth's  share  of  the  same  is,    $53,710,62 
which  constitutes  his  total  loss. 

Now,  let  us  compare  this  result  under  the  said  agreement, 
with  the  pro  rata  amount  of  said  losses  under  the  said  origi- 


nal  articles  of  copartnership — that  is,  one-half  of  the  losses  to 
Cooley,  and  one-quarter  to  Farwell  and  Wadsworth,  each. 

The  whole  amount  of  losses,  it  will  be  remembered,  is  as 
follows  : 

On  the  goods  at  invoice  price,  $40,916.97 

The  amount  of  loss  in  Cooley,  Wadsworth  &-Co.,       49,015.29 

Cooley,  Farwell  &  Co.,      -     100,000.00 


Making  a  total  loss,  as  aforesaid,  of  -  $189,932.26 
Cooley's  share,  under  the  original  copartnership 

articles,  being  half,  would  be  894,966.13 

His  loss,  under  the  last  agreement,  being  -  88,774.33 


Diiference,                                                               -  $6,191.80 
FarwelFs  share,  under  the   articles  of  copartner- 
ship, being  one-quarter  of  the  whole,  would  be  $47,483.07 
His  loss,  under  the  last  agreement,  being      -  47,447.31 


Making  a  difference  of  only  i 

Wadsworth's  share,  under  the  articles  of  copart- 
nership, being  one-quarter  of  the  whole  amount 
of  loss,  would  be  -  -  $47,447.31 

His  loss,  under  the  said  last  agreement,  being  the 

aforesaid  sum  of    -  -  53,710.62 


The  difference  against  him  is  only     -  -       $6,263.31 

In  justice  to  Mr.  Farwell,  the  fact  in  evidence  that  Mr. 
Cooley  took  to  himself  about  three-quarters  of  the  said  goods 
at  invoice  price,  and  Farwell  only  about  one-quarter  of  the 
same,  ought  to  be  borne  in  mind.  This  would  not  affect  Wads- 
worth's  private  share  of  the  losses  as  to  them  both  combined,  as 
against  him,  but  it  would  change  to  the  advantage  of  Farwell 
the  private  share  of  the  said  loss,  as  between  Cooley  and  Far- 
well. 

Can  this  be  considered  a  hardship  on  the  part  of  Wads- 
worth  ?  Certainly  not !  But  suppose  it  was,  or  that  his  con- 
sideration therefor  was  not  an  exact  proportion  under  their  old 
agreement,  has  he  not  voluntarily  received,  under  his  own 
agreement,  and  does  he  not  now  enjoy  its  benefits  ?  This  is 
admitted  and  proved.  Have  not  Cooley  and  Farwell  faithfully 


74 

-  — ^^ 

A'"      ? 

devoted  their  time  and  talents,  under  the  said  agreement,  to 
the  collection  and  converting  a  sufficient  amount  of  said  assets 
into  money  to  pay  the  said  indebtedness  of  about  $430,000, 
and  released  Wadsworth  from  all  labor  and  responsibility 
thereto  'i  And  has  not  Wadsworth  had  the  advantage  of  this 
consideration  ?  This  must  be  conceded  for  it  has  been  proved 
and  never  denied  by  the  complainant !  And  have  not  Cooley 
and  Farwell,  under  the  said  agreement,  paid  all  of  the  said 
debts,  and  without  the  aid  of  complainant  ?  No  one  denies 
this.  The  admissions  in  the  bill,  as  well  as  the  evidence,  show 
they  have  done  all  this,  and  more  than  this  ;  for  the  evidence 
shows  that  since  the  payment  of  the  said  debts,  (Wadsworth, 
upon  notice,  refused  to  divide  the  said  "  remaining  debts,"  un- 
der the  said  agreement)  they  have  converted  from  seventy-five 
to  ninety  thousand  dollars  more  of  said  "remaining  assets". 
into  money.  And  they  should  be  allowed  consideration  for 
their  labors  in  this  regard.  Under  the  said  agreement,  and  by 
the  rules  of  equity,  they  are  entitled  to  a  just  and  adequate 
consideration ;  and  the  evidence  shows  that  they  have  not  re- 
ceived a  farthing  therefor. 

Before  asking  this  Court  to  set  aside  and  rescind  the  said 
agreement,  Wadsworth  was  bound  to  return  or  make  good 
these  considerations  he  so  received  under  the  same.  Has  he 
done  so,  or  offered  to  do  so,  or  even  expressed  a  willingness  to 
do  so  ?  No  !  He  takes  all  the  said  considerations  and  appro- 
priates them  all  to  his  private  use,  and  then,  after  having  en- 
joyed them  for  one  year  and  a  half,  and  without  even  offering 
to  make  Cooley  and  Farwell  or  the  assets  of  the  firm  good,  by 
tendering  them  back,  or  in  any  other  wise  to  replace  all  the 
parties  so  far  as  possible  in  their  original  position  and  rights ; 
and  while  holding  on  to  them  as  it  is  his  right  so  to  do  only  un- 
der the  said  agreement,  he  comes  into  this  Court  with  his  bill  of 
complaint,  by  which  he  seeks  to  avoid  the  very  contract  that 
gave  to  him  the  benefits  of  said  considerations,  and  asks  this 
Court  to  pronounce  it  void  and  to  set  it  aside  ;  while,  at  the 
same  time,  he  himself  refuses  to  relinquish  one  iota  that  he 
has  received  under  it.  He  retains  the  said  $10,000,  without 
offering  to  return  the  same.  He  retains  the  $3,500  which  he 
afterwards  received.  He  took  from  Cooley  and  Farwell  his 
release  from  the  duty  of  aiding  in  the  collection  of  the  said 
assets,  and  the  responsibility  of  paying  said  debts,  and  placed 


75 

the  same  wholly  upon  Cooley  and  Fanvell,  and  all  under  the 
said  agreement.  He  substituted  the  said  agreement  in  the 
place  of  the  said  original  copartnership  agreements,  by  which 
the  said  "  remaining  assets  "  were  to  be  divided  between  the 
said  partners  "  according  to  the  private  amount  due  to  each  ;" 
and,  in  the  most  complacent  manner,  he  has  appropriated  to 
himself  all  that  he  was  to  have  and  to  enjoy  under  the  said 
agreement ;  and  then  he  comes  into  this  Court  with  all  the 
said  considerations,  or  the  avails  of  them,  in  his  pocket,  and 
without  offering  in  any  manner  to  make  Cooley  and  Far  well 
good  in  the  premises,  asks  that  this  same  agreement  by 
which  he  holds  them  may  be  set  aside,  and  he  admitted  to  his 
original  rights  under  the  said  original  copartnership  agree- 
ments, with  the  brazen  lie  upon  his  conscience  that  he  has 
"  faithfully  fulfilled,"  on  his  part,  all  his  promises  and  under- 
takings mentioned  in  the  said  original  copartnership  agree- 
ments. Is  this  equity  ?  Has  it  good  common  sense  for  its 
foundation  ?  Has  it  common  honesty  to  support  it  ?  Such  is 
the  selfish,  grasping  disposition  of  the  complainant !  Shall  we 
say  that  this  is  a  fair  exemplification  of  the  man  ?  We  will 
not  pronounce  upon  him ;  but  we  can  say,  that  such  is  the  re- 
flection which  the  evidence  in  this  case  and  his  own  bill  ol  com- 
plaint reflects  upon  his  chararter. 

But  it  may  be  replied,  that  the  testimony  above  recited,  as 
to  the  value  of  said  goods,  and  upon  which  our  remarks  have  in 
part  been  based,  has  been  changed  by  the  testimony  of  Aiken 
and  Harmon.  We  will  refer  to  it  and  see  how  it  is.  On  page 
699,  int'y  7,  Mr.  Aiken  testifies,  that  "  I  should  consider  a 
general  stock  of  merchandise,  at  that  time,  worth  cost,  if  a  fair 
proportion  of  staples  were  in  the  stock."  On  the  cross-exami- 
nation, on  the  same  page,  int'y  1 ,  he  testifies,  thatj  "  as  to 
merchandise  for  future  trade  in  January,  1862,  there  was  rather 
a  timid  feeling."  On  page  700,  int'y  3,  he  says,  "  my  acquaint- 
ance with  the  stock  of  merchandise  kept  by  C.,  F.  &  Co.,  in 
January,  1862,  was  not  such  as  to  fix  the  cash  value  of  it.  In 
answer  to  int'y  4,  he  says,  "  I  should  think  that  a  general  stock 
would  be  worth  its  cost,  with  the  usual  discount  from  goods 
bought  on  time."  In  reply  to  int'y  6,  he  says,  "  that  as  between 
the  comparative  value  of  goods  in  January,  1862,  and  July  fol- 
lowing, my  impression  is,  that  there  was  not  much  difference." 
In  reply  to  int'y  7,  8,  9,  10  and  11,  on  page  701,  he  says,  "  (his 


firm)  Harmon,  Aiken  &  Gale,  kept  for  sale  staple  and  fancy 
dry  goods  and  notions,  and  that  they  sold  the  same  to  their 
successors,  Harmon,  Gale  &  Co.,  at  New  York  cost,  less  a  dis- 
count of  12%  per  cent.,  on  a  credit  of  eight  months."  In 
answer  to  int'y  18,  19  and  20,  pages  702-3,  he  testifies,  that 
"  their  said  stock  (sold  by  them)  was  purchased  in  the  spring 
of  1861  and  previously.  That  goods  in  the  fall  of  1861  were 
higher  than  in  the  spring,  from  ten  to  twenty  per  cent.,  and 
that  from  the  fall  of  1861  to  the  time  of  their  said  sale  there 
was  still  another  advance,  I  should  say,  of  ten  per  cent."  Let 
us  look  at  this  testimony  a  little  more  closely. 

1st.  Mr.  Aiken  says  that  general  stocks  of  goods  in  Jan'y, 
1862,  were  worth  cost,  with  the  usual  discounts  off,  from  goods 
bought  on  8  months  time. 

2d.  That  he  bought  these  goods  in  the  spring  of  1861,  and 
that  from  that  time  to  fall  stocks  of  goods  advanced  from  ten 
to  twenty  per  cent,  and  that  from  fall  to  the  time  his  firm  sold 
the  stock,  they  advanced  again  ten  per  cent.  The  difference 
between  cash  and  time  prices  is  at  least  five  per  cent.  Now, 
if  we  add  this  to  the  said  two  advances,  we  have  a  dif- 
ference of  thirty  per  cent,  and  add  to  this  thirty  per  cent,  the 
actual  discount  which  this  witness  says  his  firm  sold  his  stock 
for,  to- wit,  12£  per  cent,  and  we  have  really  and  in  fact  a  dis- 
count upon  his  said  stock  of  forty-two  and  a  half  per  cent  In 
answer  to  the  int'y  36,  on  page  708,  Mr.  Aiken  testifies  further, 
that  his  firm's  said  stock  was  worth  to  the  said  succeeding  firm 
from  10  to  15  per  cent  more  than  to  any  one  else. 

Mr.  Harmon  testifies  on  page  711,  int'y  4,  that  the  goods  in 
a  certain  invoice  which  complainant  furnished  him  to  examine 
on  the  21st  of  January,  1862,  was  worth  95  cents,  in  a  regular 
way,  or  on  the  usual  credit  of  eight  months.  On  page  712,  in 
reply  to  int'y  4,  he  says :  I  never  examined  the  goods  at  all 
(that  is  the  goods  in  the  inventory  furnished  by  Wadsworth 
to  him).  In  reply  to  int'y  6,  he  says  :  On  the  21st  of  Jan'y, 
1862,  I  think  there  was  a  general  distrust  of  the  future  in 
regard  to  business  prospects.  In  reply  to  int'y  7,  he  says : 
As  between  a  stock  of  goods  selected  from  the  market  and  a 
stock  that  has  been  sold  from  and  kept  along  for  years,  there 
is  a  difference  in  value  from  10  to  15  per  cent.  In  reply  to 
int'y  11,  page  813,  he  says,  that  he  does  not  think  he  would 
be  willing  to  give  95  cents  in  the  regular  way,  (that  is  on  eight 


77 

months  time)  for  a  stock  of  goods.  In  reply  to  int'y  15,  page 
714,  he  says,  that  the  success  and  defeat  and  delay  of  the  loyal 
arms  of  the  government  at  that  time  controlled  the  confidence 
of  business  in  the  reliability  of  the  (then)  present  and  future 
transactions  and  influenced  the  price  of  merchandise  to  depress 
the  price.  Int'y  16.  Prior  to  that  time,  I  think  there  was  a 
general  feeling  of  depression.  I  do  not  remember  of  any  suc- 
cess our  armies  had  achieved  at  that  time. 

It  will  be  seen  that  Mr.  Aiken,  after  all,  does  not  differ  very 
much  in  his  judgment  of  the  value  of  old  stocks  of  goods  at 
that  time  from  the  mass  of  testimony  above  quoted.  And  that 
Mr.  Harmon's  judgment  would  not  under  all  the  circum- 
stances of  his  testimony,  after  all,  make  the  value  of  a  stock  of 
goods  like  that  purchased  by  Cooley  &  Farwell  at  that  tune 
worth  far  from  80  per  cent,  of  the  cost  or  invoice  price.  He 
says  that  a  general  stock  would  be  worth,  at  regular  rates,  95 
cents,  which  would  make  it  worth  in  cash  90  cents;  but  he 
says,  that  between  a  fresh  stock,  like  that  of  the  inventory  he 
examined,  and  an  old  stock,  there  would  be  a  difference  in  value 
of  from  10  to  15  per  cent.;  thus,  in  fact,  reducing  his  cash  figures 
or  value  for  a  broken  stock  to  78|-  per  cent,  of  the  invoice  price 
named  in  the  inventory  he  examined.  But  if  we  had  taken  the 
testimony  of  these  two  witnesses  as  they  gave  it  in  on  the 
direct  examination  without  the  qualifications  which  they 
respectively  give  on  the  cross-examination,  it  amounts  to  only 
this,  that  complainant  has  introduced  two  witnesses  to  over- 
throw the  united  testimony  of  eight  witnesses,  to-wit :  Thos. 
B.  Carter,  R.  J.  Bross,  J.  K.  Harmon,  Rushmore,  Hart,  Wood- 
house,  Gale,  and  Whipple. 

The  evidence,  or  the  weight  of  testimony,  shows  that  mer- 
chandise did  not  advance  in  value  until  some  six  months  after 
the  date  of  said  sale.  But  suppose  such  goods  had  began  to 
advance  immediately  after  the  date  of  said  invoice  ;  and  sup- 
pose they  were  the  most  desirable  portion  of  the  assets  of  the 
said  firm,  was  not  the  said  complainant  bound  to  know  these 
two  facts,  if  they  were  then  knowable  ?  And  is  he  not  to  be 
considered  as  having  this  knowledge,  or  all  requisite  know- 
ledge, when  he  disposes  of  his  interest  therein  ?  If  he  did 
not,  and  if  he  is  compus  mentis  and  makes  a  sale  of  his  inter- 
est therein  for  a  good  and  valuable  consideration,  can  he  be 
relieved  from  his  contract  for  that  reason  ?  By  no  means.  The 


law  holds  him  to  his  contract,  if  the  consideration  is  a  valua- 
ble one,  and  the  means  of  information  is  open  to  him,  though 
he  neglects  to  inform  himself.  Upon  this  point  we  shall  pre- 
sent, if  necessary,  authorities  in  another  part  of  this  argument. 
NINTH  ALLEGATION. 

On  page  17,  complainant  insists,  "that  his  said  partners,  in 
"  dealing  with  said  copartnership  business  and  property,  and 
"  with  his  interests  therein,  have  always  occupied  a  fiduciary 
"relation  to  him,  with  all  the  liabilities  of  trustees." 

No  testimony  has  been  produced  to  sustain  this  allegation, 
and  the  defendants  deny  it. 

Prior  to  the  agreement  of  the  21st  day  of  January,  1862,  it 
was  not  true,  in  any  sense,  except  that  in  which  all  partners 
are  so  by  virtue  of  being  partners.  Cooley  &  Far  well,  up  to 
that  time,  did  not  hold  the  property  of  the  firm  any  more  in 
trust  for  him  than  he  did  for  them. 

Webster  says,  "  a  '•Fiduciary'  is  one  who  depends  on  faith 
for  salvation  without  works."  In  this  sense,  the  complainant 
may  have  been  a  "fiduciary"  ;  that  is,  he  depended  upon  his 
faith  in  Cooley  &  Farwell's  ability  to  make  him  rich  without 
any  labor,  and  but  little  money,  on  his  part. 

After  the  making  of  the  said  agreement,  and  by  virtue  of  it, 
Cooley  &  Farwell  then  took  the  position  of  trustees,  and  held 
the  assets  of  the  firm  to  pay  its  debts,  and  all  the  expenses  of 
collecting  moneys  to  pay  said  debts  with  ;  and  then  they  were 
to  surrender  such  trust  in  a  manner  set  forth  in  said  agreement, 
and  each  partner  was  to  take  his  share  of  interest  in  the  "  re- 
maining assets"  into  his  own  hands  and  care  for  them  at  his 
own  expense. 

TENTH  ALLEGATION. 

On  page  17,  complainant  states,  "  that  on  or  about  the  21st 
"day  of  January,  1862,  Cooley  &  Farwell  stated  to  him  that 
"his  account  was  largely  over-drawn  ON  THE  BOOKS  OF  SAID 
"  COPARTNERSHIP,  and  that  such  over-drafts  had  largely  em- 
"  harassed  the  said  firm,  (of  C.,  F.  &  Co.),*that  they  had  great 
"  difficulty  in  paying  the  debts,  and  that  his  private  account 
"  was  relatively  so  much  larger  than  theirs  ;  that  he  (compl't), 
"  should  do  what  he  could  to  make  amends,  and  then  proposed 
"  for  these  considerations,  he  should  permit  the  said  merchan- 
"  dise,  amounting  to  $161,041.89,  (at  invoice  price,)  to  be 
"  charged  to  their  private  account  at  said  invoice  price,  and 


"  that  complainant  should  transfer  to  them  all  his  interest 
"  therein,  and  all  profits  made  or  to  be  made  on  sales  from  the 
"  9th  day  of  January  to  the  1st  day  of  February,  1862,  (and 
"  that  in  further  consideration  for  such  transfer,)  complainant 
"  was  to  receive  the  note  of  said  firm  for  $10,000,  to  be 
"  charged  to  his  account ;  and  that  nothing  further  should  be 
"  drawn  from  the  assets  of  the  said  firm  until  all  the  copartner- 
"  ship  debts  were  fully  paid,  after  which  the  remaining  assets 
"  should  be  divided  among  the  partners,  pro  rata,  according 
"  to  the  amounts  due  to  each ;  that  all  expenses  attending  the* 
"  closing  of  said  business  to  be  paid  out  of  said  assets.  *  * 
On  page  18,  he  further  states,  "  that  the  books  of  said  Cooley, 
"  Farwell  &  Co.,  were  at  that  time  kept  in  such  a  manner  as 
"  to  give  color  to  the  representations  of  Cooley  &  Farwell ; 
"  and  that  he  thereupon  assented  to  their  proposal,  and  was  in- 
"  duced  to  sign  a  writing  containing  the  substance  of  said  pro- 
posal, dated  21st  January,  1862."  (See  page  642.)  On  page 
19,  he  further  states,  "that  he  received  the  notes  of  the  said 
"firm  for  $10,000,  as  stated  in  said  writing  ;  that  the  same 
"  was  charged  to  his  private  account  on  the  books  of  said  firm, 
"  and  that  the  said  goods  were  charged  to  the  private  account 
"  of  Cooley  &  Farwell ;  that  he  kneAV  nothing  as  to  the  relation 
"  of  his  private  account  to  that  of  his  partners,  except  as  they 
"  informed  him."  (How  did  he  know  that  the  books  gave  col- 
or to  said  statements,  if  their  said  statements  were  his  only 
information  ?)  We  reply  to  these  allegations,  that 

The  defendants  admit  the  making  of  the  said  agreement  be- 
tween the  complainant  and  Cooley  &  Farwell ;  but  they  deny 
that  Cooley  &  Farwell,  or  either  of  them,  made  any  such  state- 
ment, and  insist  that  he  examined  for  himself  the  said  books  of 
account,  and  the  private  and  stock  accounts  of  himself  and 
partners,  and  this  much  he  admits  in  his  bill,  as  we  have  seen, 
and  that  he  also  examined  into  the  general  condition  of  the  said 
firm's  business ;  that  he  had  every  facility  for  so  doing,  and 
that  in  full  view  of  all  the  facts,  and  of  the  several  accounts  of 
the  partners,  ha  made  the  said  agreement  with  Cooley  &  Far- 
well.  They  also  admit  that  the  said  goods  were  charged  to 
the  private  account  of  Cooley  &  Fanvell ;  and  that  complain- 
ant received  from  the  said  firm  the  sum  of  $10,000,  which  was 
charged  to  his  private  account,  and  that  Cooley  &  Farwell 
took  into  their  possession  the  balance  of  the  said  assets  for  the 


80 

sole  purpose  of  converting  a  sufficient  amount  thereof  into 
money,  to  pay  the  said  debts  and  expenses,  and  that  so  soon 
as  they  had  paid  said  debts,  they  notified  complainant  of  the 
fact,  and  that  they  were  ready  to  divide  the  balance  of  the  said 
assets,  under  the  said  agreement ;  and  that  the  complainant 
thereupon  neglected  to  divide  the  said  remaining  assets,  on 
frivolous  excuses,  and  finally  wholly  refused  so  to  divide  them, 
and  that  they  still  remain  undivided  ;  that  since  then  Cooley  & 
Farwell  have  been  ready,  and  willing,  and  anxious,  to  so  divide 
them,  and  are  now  ready  and  Avilling  so  to  do,  and  gave  him 
notice  to  that  effect.  The  defendants  also  reply,  that  a  general 
accounting  was  at  that  time  had  by  the  said  partners,  and  a 
settlement  made  between  the  said  partners  of  all  matters  per- 
taining to  the  business,  and  their  respective  relations  to  the  said 
firms ;  and  that,  when  said  accounting  was  had,  to  wit,  on  the 
day  said  agreement  was  made,  it  was  mutually  agreed  that  in- 
terest should  be  cast  upon  their  private  accounts,  and  upon  all 
deficiency  to  their  capital  stock  ;  and  that  at  the  time  of  the 
formation  of  the  said  firm,  it  was  agreed  that  the  merchandise 
on  hand  at  the  close  of  the  second  firm  of  C.,  W.  &  Co., 
should  be  divided  between  the  partners  in  the  ratio  of  profits, 
and  that  each  partner's  share  should  be  credited  to  his  stock 
account  in  said  firm  of  C.,  F.  &  Co. ;  and  that  at  the  time  of 
the  said  accounting,  the  said  complainant  received  a  statement 
of  his  account,  containing  the  items  of  the  said  interest,  and 
his  share  of  such  division  of  merchandise. 

What,  then,  is  the  issue  on  this  allegation  ? 

1st.  Was,  or  not,  complainant's  private  account  relatively 
overdrawn  "  on  the  books  "  of  the  said  firm  ? 

2.  Had,  or  not,  said  firm  (during  its  existence)  great  diffi- 
culty in  paying  its  debts  ? 

3d.  Did,  or  not,  the  said  Cooley  &  Farwell  make  false  rep- 
resentations to  him,  and  thereby  induce  complainant  to  make 
said  agreement  with  them  ? 

For  the  evidence  to  sustain  the  defendants  in  their  position 
in  the  said  first  issue,  we  refer  to  the  collation  of  the  evidence 
commencing  on  ante  page  53  to  61  inclusive. 

To  the  second  issue,  to  wit :  "  Had,  or  not,  said  firm  of  C.> 
F.  &  Co.,  (during  its  existence)  great  difficulty  in  paying  its 
debts  ?"  We  say  it  had  and  that  the  evidence  sustains  us. 


81 

The  complain :uit  has  not  offered  any  evidence  to  prove  his 
position. 

Mr.  Spink  testifies,  on  page  116,  cross  99,  "that the  average 
"  balance  of  money  loaned  by  Cooley  and  Farwell  to  pay  the 
"debts  of  the  said  tivm  of  C.,  F.  &  Co.,  from  the  first  day  of 
"April  to  the  1st  day  of  September,  1862,  was  $109,000;  and 
"  that  the  average  bal  .nice  so  loaned  for  such  purpose,  from  the 
"  1st  of  March,  1862,  to  the  1st  of  January,  1863,  was  $68,500  ; 
"  and  that  the  bankers'  rate  of  interest  for  money  loaned  was 
"10  per  cent,  during  the  periods  named,  and  at  which  rates 
"  very  large  sums  of  money  were  loaned  in  this  city." 

Mr.  Leiter  testifies,  on  page  583,  int.  63,  "that  the  firm  of 
"  0.,  F.  &.  Co.,  made  loans  to  carry  on  its  business.  The 
"  amount  borrowed  by  both  firms  of  C.,  W.  &  Co.,  and  C.,  F. 
"  &  Co.,  in  1857,  '58,  '59,  '60  and  '61,  Avas  $824,676.53,  and 
"  said  firms  paid  interest  at  the  rate  of  7  per  cent.  The  amount 
"  borrowed  by  C.,W.  &  Co.,  No.  2,  was  $295,589  ;  the  amount 
"borrowed  by  C.,  F.  &  Co.,  in  1857,  was  $42,000;  in  1858, 
"$256,400; .in  1859,  $26,500;  in  I860,  $67,000,  and  in  1861, 
"  $137,187.53." 

On  page  591,  cross  43.,  he  further  testifies  "  that  no  part  of 
"  the  money  borrowed  by  the  firm  of  C.,  "W.  &  Co.,  was  bor- 
"  rowed  by  the  firm  of  C.,  F.  &  Co. 

On  page  593,  int.  71,  he  says,  "  If  C.,  F.  &  Co.  had  relied 
"  upon  the  assets  of  said  firm  to  meet  its  liabilities,  it  would 
"  have  necessitated  borrowing  money  at  least." 

C.  B.  Farwell  testifies,  on  page  638,  int.  4,  5,  6,  9  and  10, 
"that  John  V.  Farwell  came  to  him  in  the  fall  of  1857,  to  get 
"  him  to  endorse  the  paper  for  the  firm  of  C.,  F.  &  Co.,  and 
"  said  '  that  instead  of  complainant's  furnishing  the  firm  the 
"  facilities  for  its  business,  the  firm  was  obliged  to  provide  for 
"  -S25,000  of  paper  which  the  firm  had  endorsed  for  complain- 
"  ant.'  (Witness  then  states)  "  that  he  immediately  commenced 
"  endorsing  for  the  said  firm,  and  that  he  endorsed  its  paper  to 
"the  amount  of  about  $100,000." 

On  page  640,  int.  9,  he  further  states,  "  that  during  the  finan- 
"  cial  crisis  of  1857-8,  the  rate  of  exchange  was  about  10  per 
"cent.,  frequently  over  and  under  this  amount,  and  C.,  F.  & 
"  Co.  sent  circulars  to  their  customers  to  send  their  grain  to 
"  the  firm  and  it  would  allow  them  the  market  price  on  its  ar- 
"  rival,  or  hold  it  until  ordered  sold,  or  would  ship  it  to  New 
11 


82 

"  York  and  allow  them  what  it  sold  for  there,  and  that  Mr. 
"Tyrrell,  of  Burley  &  Tyrrell,  said  that  the  course  C.,  F.  <fc 
"  Co.  pursued  saved  them  from  failure  ; '  and  John  V.  Farwell 
"  told  him  (witness)  that  this  policy  saved  the  firm  from  sus- 
"  pension." 

The  third  issue,  to  wit:  Did,  or  not,  Cooley  &  Farwell  make 
false  statements  to  complainant,  to  wit :  that  complainant's  ac- 
count, relatively,  was  much  larger  than  theirs  ? 

The  complainant  has  not  offered  any  direct  evidence  upon 
this  issue.  He  assumes,  in  his  bill,  that  false  representations 
were  made  to  him ;  and  when  he  puts  his  main  witness  (Mr. 
Spink)  upon  the  stand,  he  instructs  him,  and  so  does  his  coun- 
sel, that  said  witness,  in  his  figures,  is  to  assume  that  there  was 
false  representations,  and  said  witness,  under  such  instructions, 
starts  out  and  proceeds  in  his  direct  examination  upon  the  hy- 
pothesis that  the  books  contained  improper  entries  from  the 
commencement  of  the  firm  of  C.,  W.  &  Co.,  No.  1,  to  the 
close  of  the  firm  of  C.,  F.  &  Co.  In  fact,  all  the  figures  and 
results  produced  by  said  witness,  in  his  direct  examination,  are 
based  upon  such  assumption,  and  of  course  they  present  only 
distortion  by  violating  all  the  agreements  of  the  partners  and 
the  evidence  of  such  agreements  in  the  books  of  account. 

Mr.  Spink  testifies  on  page  83,  cross  46  b,  and  cross  47, 
"  that  if  entries  were  made  on  the  books  not  in  accordance 
"  Avith  agreements,  it  seems  probable  to  him  that  the  several 
"  partners,  having  fall  access  to  the  books,  would  have  known 
"  it." 

In  his  computations  as  submitted  in  his  examination  in  chief, 
he  says  :  "  I  could  not  and  should  not  have  taken  account  of 
"  agreements  simply  represented  by  entries  and  deducible  there- 
"from,  as  I  was  requested  to  make  my  computations  on  the 
"  basis  of  the  articles  of  copartnership  by  Mr.  Wadsworth 
"  and  his  attorneys." 

On  pages  205  and  206,  cross  145,  he  testifies  on  the  question, 
"  had  the  articles  of  copartnership  and  books  of  account  and 
the  entries  therein  of  the  three  several  firms  been  submitted  as 
the  evidence  of  all  the  agreements  made  between  the  said  part- 
ners, how  would  you  have  divided  the  merchandise  and  made 
up  the  accounts:'" 

He  replies :  "I  should  have  divided  them  (the  goods)  on  the 
"  same  basis ;  (that  is,  in  the  ratio  of  profits.)  I  would  probably 


83 

"'  have  made  some  little  difference  in  the  transfers,  and  would 
"  have  corrected  the  errors  in  the  figures  of  interest.  [Those 
••  errors,  it  will  be  remembered,  were  made  in  favor  of  Wads- 
*'  worth.]  There  is  nothing  in  the  articles  of  copartnership  in 
"  controvention  of  such  a  division  of  goods  ;  in  fact,  there  is 
"  nothing  in  them  on  the  subject." 

On  page  221,  cross  95,  he  testifies,  "  that  he  has  not  discov- 
"  ered  in  his  examination  of  the  said  books  of  account,  any 
"  evidence  of  deceit,  or  of  intention  to  deceive  in  either  of  the 
"  entries  therein  or  in  the  manner  in  which  they  have  been 
"  kept." 

And  Wadsworth  himself  states  on  page  IS  of  his  bill,  "that 
"  the  books  of  said  Cooley,  Farwell  &  Co.,  at  this  time,  were 
"  kept  in  such  a  manner  as  to  give  color  to  the  representations 
"  of  Cooley  and  Farwell  that  your  orator  had  overdrawn  his 
"  account  with  said  firm" 

But  how  does  the  complainant  and  his  counsel  figure  out 
that  complainant's  account  was  not  relatively  larger  than  his 
partners  ? 

1st.  By  treating  the  $5,000  loaned  by  Farwell,  of  the  first 
firm  of  C.,  W.  &  Co.,  and  the  interest  thereon,  as  so  much 
money  drawn  from  the  assets  on  his  private  account,  in  viola- 
tion of  the  agreement  of  the  copartnership. 

Mr.  Spink  testifies  on  this  point,  on  page  205  and  142,  that 
"  the  amount  of  $5,000  should  not  be  included  in  considering 
"  the  amount  of  his  (Farwell's)  drafts,  relatively  to  those  of 
"  his  partners,  because  it  was  a  special  loan,  not  to  be  refunded 
"  by  him  until  certain  contingencies  had  arisen — and  these  had 
"  not  arisen."  See  also  int'y  141  and  cross  180,  page  217. 

On  page  179,  int'y  88  and  89,  Mr.  Spink  testifies,  that  Wads- 
worth  was  entitled  to  draw  the  sum  of  $10,112.65  more  than 
Farwell,  but  this  he  corrects  and  pronounces  it  false  in  fact  in 
his  cross-examination,  on  page  205,  int'y  144,  he  says:  "In 
"  neither  firm  did  Wadsworth  have  the  right  to  draw  $10,- 
"  112.65  more  than  Farwell ;  my  answers  to  the  88  and  89 
"  direct  interrogatories  were  made  on  the  hypothesis  of  the 
"  question  propounded  to  me." 

2d.  By  dividing  the  goods  on  the  basis  of  capital  without 
any  agreement  to  do  so,  and  in  violation  of  their  agreement  to 
divide  them  in  the  ratio  of  profits. 


84 

Mr.  Spink  testifies  on  page  205,  that  "  take  the  books  with 
"  the  articles  of  copartnership  as  evidence  of  the  agreement 
"  of  the  partners  upon  the  division  of  the  goods,  and  I  should 
"  have  divided  them  on  the  same  basis  of  the  books,  (that  is,  in 
"  the  ratio  of  profits).  There  is  nothing  in  the  articles  of  co- 
"  partnership  in  controvention  of  such  a  division  of  the  goods ; 
"  in  fact  there  is  nothing  in  them  upon  the  subject."  On  page 
"  216,  int'y  178,  he  says,  that  the  goods  on  hand  at  the  close 
"  of  each  firm  could  not  be  considered  as  so  much  capital  in 
"  the  new  or  succeeding  firm  without  the  express  agreement 
"  of  the  partners."  On  page  219,  int'y  184,  he  testifies,  "  that 
"  in  the  absence  of  any  agreement  to  divide  the  goods,  they 
"  should  be  converted  into  money  and  the  money  divided." 
On  same  page,  int'y  185,  he  says,  "that  in  the  absence  of  an 
"  agreement  to  divide  the  goods,  the  debts  having  been  paid, 
"  they  could  not  be  divided  in  the  ratio  of  capital  stock  with- 
"  out  first  reducing  them  to  money,  in  order  that  a  valuation 
"  should  be  placed  upon  them  and  that  he  (witness)  had  no 
"  knowledge  of  the  value  of  said  goods."  (See  int'y  186.) 

3d.  By  omitting,  in  Mr.  Spink's  examination  in  chief,  to 
charge  and  credit  interest  on  shortage  and  surplus  of  capital 
of  the  several  partners  to  the  capital  stock  of  the  firm  of  C., 
F.  &  Co.,  and  by  throwing  out  of  consideration  the  time  capital 
of  Cooley  &  Farwell.  Mr.  Spink  testifies  on  page  82,  int'y 
44,  "  that  he  computed  no  interest  in  his  computations  in  chief 
"upon  capital,  or  upon  deficiency  of  capital."  On  page  114, 
int'y  95,  he  testifies,  "  that 'the  effect  of  computing  interest  on 
"  shortage  and  surplusage  of  capital  would  be  to  equalize  to 
"  that  extent  their  relations  as  capitalists  in  the  firm."  On 
page  114,  int'y  96,  he  says,  "in  cases  where  the  partners  fail 
"  to  pay  in  the  capital  they  agree  to,  it  is  customary  to  cast 
"  interest  on  the  several  deficits ;  thus  to  that  extent  the  deficits 
"  become  equalized."  On  page  84,  intfyj49,  he  says,  "  interest 
"  at  the  rate  of  6  per  cent,  woultf^irfmy  opinion  compensate 
"  for  deficiency  of  capital  stock."  On  page  68,  int'y  24  and  25, 
"  he  says,  "  that  I  took  no  account  of  compensation  to  Cooley 
"  &  Farwell,  or  either  of  them,  in  my  computations  in  chief,  for 
"  their  time  (capital)  as  against  capital. 

4.  By  causing  Mr.  Spink  in  his  ex.  in  chief  to  ignore  the 
firm  of  C.,  F.  &  Co.,  and  to  treat  it  as  the  continuance  of  the 
firm  of  C.,  W.  &  Co.  No.  1. 


Sa 

Mr.  Spink  testifies  011  page  136,  int'y  113,  that  "the  effect 
"  of  ray  computations,  however,  on  the  balance  of  assets  of  the 
"three  firms,  on  hand  on  February  1,  1862,  would  not  be  to 
"  change  that  balance,  had  I  figured  the  three  firms  as  one 
"  continuing  firm.  Nor  would  it  change  the  total  balance  dm- 
"  each  partner  February  1,  1862,  with  the  exception  of  a  small 
"  matter  of  interest,  figured  on  deficit  of  capital  in  the  2d  firm 
"  of  C.,  W.  &  Co."  [This  interest  so  figured  was  in  favor  of 
complainant.]  On  page  75,  int'y  32,  he  says,  "  the  cause  of 
"  the  differences  between  his  computations  in  chief  and  the 
"  books,  are  principally  on  account  of  interest  being  figured  on 
"  the  books  of  C.,  F.  &  Co.  on  shortage  of  capital  from  $200,- 
"  000,  divided  in  proportion,  half  to  Cooley,  two-fifths  to 
"  Wadsworth  and  one-tenth  to  Farwell,  and  by  the  charge  of 
"  interest  on  the  division  of  the  goods,  as  between  the  mode  of 
"  dividing  them  on  the  basis  of  capital  or  profits. 

5.  By  seeking  to  make  it  appear  that  a  great  wrong  was 
done  Wadsworth  by  reason  of  the  said  two  building  accounts 
being  kept  distinct  as  "  Building  Accounts"  and  instead 
of  being  charged  directly  to  the  private  account  of  those  to 
whom  they  belonged. 

Mr.  Spink  testifies  on  page  107,  int'y  77,  "  that  th  < 
"  injury  done  to  either  of  the  partners  in  leaving  the  "  building 
"  accounts  "  standing  on  the  books,  neither  was  there  any  im- 
"  propriety  in  so  doing."  On  page  106,  int'y  75,  he  says, 
"  that  these  accounts  were  kept  separately  for  convenience,  as 
"  such  accounts  are  generally  kept,  and  that  they  were  paid 
"  with  interest." 

6th.  By  attempting  to  make  it  appear  that  the  profit  and 
loss  account  of  C.,  F.  &  Co.,  was  much  larger  than  the  esti- 
mate of  the  losses  of  this  firm  were,  as  presented  in  said  "  Ex- 
hibit A"  to  Mr.  Spink's  deposition  on  page  44  of  ev.  In  this 
Exhibit,  it  was  estimated  to  be  $100,000,  at  the  time  said  esti- 
mate was  made,  to  wit :  on  the  20th  of  January,  1862;  and 
that  the  said  division  of  the  goods  between  the  partners  in  the 
ratio  of  profits,  and  the  charge  of  interest  on  shortage  of  cap- 
ital, which  were  also  contained  in  said  Exhibit  A,  were  not 
known  to  said  complainant. 

Mr.  Leiter  testifies,  on  page  582,  int.  59,  "  that  the  amount 
"charged  to  profit  and  loss  since  February  1st,  1862,  is  $149,- 
"  015.29." 


86 

On  page  529,  in  answer  to  the  42d  cross  int.  by  complainant, 
he  says,  "that  the  said  sum  of  $149,015.29,  charged  to  the 
"  said  account  of  profit  and  loss,  included  both  C.,  W.  &  Co., 
"No.  2,  andC.,  F.  &  Co." 

This  would  leave  about  the  sum  of  $100,000  to  the  account 
of  C.,  F.  &  Co.,  as  estimated  in  said  "Exhibit  A."  That  said 
Exhibit  was  only  an  estimate,  made  about  the  20th  of  January, 
1862,  there  can  be  no  doubt  from  the  testimony. 

Mr.  Spink,  who  says,  on  page  220,  cross  91,  "  that  from  the 
"  charge  of  $25,000  to  Wads  worth  in  said  Exhibit  for  one- 
"  fourth  of  the  losses,  it  may  be  inferred  that  the  total  loss  of 
the  firm  of  C.,  F.  &  Co.,  No.  ],  would  amount  to  about 
"  $100,000." 

On  page  88,  cross  62,  he  says,  "  It  is  evident  from  the  books 
"  and  this  Exhibit,  that  the  same  was  made  about  the  20th  of 
"January,  1862,  for  the  profit  and  loss  account  was  not  made 
"up  until  the  31st  of  January,  1862,  nor  was  the  interest  on 
"  stock  account.  The  Exhibit  charges  Wadsworth  with  $25,000 
"  as  a  quarter  of  the  losses.  From  the  foregoing,  I  therefore 
"  conclude  that  it  was  an  estimate  of  the  affairs  of  the  firm 
"named,  as  they  Avould  probably  stand  on  the  1  st  of  February, 
"1862." 

On  page  90,  cross  66,  he  says,  "  that  the  charge  of  interest 
"  in  the  said  Exhibit  A  "  seems  to  be  the  amount  chargeable 
"  to  Wadsworth  for  interest  on  shortage  of  capital  from  the 
"  sum  of  $80,000,  as  the  amoiint  due  him  on  that  account  to 
"  the  firm." 

Mr.  Leiter  testifies,  on  page  595,  int.  78,  "  that  said  Exhibit 
"  -4,  (to  Spink's  deposition)  must  have  been  made  about  the 
"18th  of  January,  1862,  and  it  appears  to  be  an  estimate  of 
"  Mr.  Wadsworth's  condition  in  the  firm  at  that  time." 

On  pages  591-2,  int.  64  and  65,  Mr.  Leiter  says  "  that  said 
"^Exhibit  A  shows  as  follows  :  The  credit  of  $28,842.46  was 
"  derived  from  one-fourth  of  the  merchandise  on  hand  Feb- 
"ruary  1st,  1857,  and  the  credit  of  $10,419.00  was  derived  from 
"  collections  from  C.,  W.  &  Co.,  No.  2,  and  that  the  charge  of 
"  $12,097.02  of  interest,  was  charged  to  Wadsworth  on  short- 
"  age  of  capital." 

From  this  testimony  how  is  it  possible  for  the  complainant 
to  say,  in  good  faith,  that  he  did  not  know  of  the  division  of 
the  merchandise  between  the  partners  in  the  ratio  of  profits, 


87 

and  that  he  did  not  know  of  the  charge  of  interest  to  his  ac- 
count upon  deficit  of  capital  from  the  sum  of  $80,000  until 
March,  1863V  He  has  shown  by  his  own  testimony,  that  he 
knew  all  about  it.  What  was  the  object  of  this  statement  in 
said  "Exhibit"?  The  said  Exhibit  itself  answers  the  ques- 
tion. It  was  to  show  how  his  account  would  probably  stand 
under  the  said  agreement  of  21st  of  January,  1861 — that  is, 
how  it  would  stand  after  the  stock  account  and  after  his  inter- 
est upon  his  deficiency  of  capital  was  made  up.  And  it  also 
shows  what  the  said  partners  had  estimated  the  losses  in  the 
firm  of  C.,  F.  &  Co.,  to  be.  These  various  items  are  contained 
in  said  Exhibit  by  name,  and  the  said  Exhibit  is  placed  in  his 
hands  advising  him  of  the  amount  of  interest  upon  his  defi- 
ciency of  capital ;  also  of  the  division  of  goods  in  the  ratio  of 
profits,  and  of  the  estimated  losses  so  sustained  by  said  firm. 
Yet  this  complainant,  having  received  this  statement  thus  made 
up,  and  after  having  it  in  his  possession  18  months,  he  deliber- 
ately states  to  this  Court  that  he  did  not  know  of  said  division 
of  goods,  nor  of  said  interest  upon  his  deficiency  of  capital, 
nor  of  said  estimated  losses ;  and  while  this  allegation,  so  false, 
in  fact,  was  blistering  upon  his  tongue,  he  brings  forth  the  said 
"  Exhibit  A"  containing  all  these  items,  and  proving  beyond 
all  controversy,  that  his  said  allegation  was  not  only  untrue, 
but  that  he  knew  it  to  be  untrue  at  the  time  he  made  it. 

The  estimated  amount  of  losses  in  the  said  firm  of  Cooley, 
Farwell  &  Co.,  at  $100,000,  is  not  far  from  the  actual  losses. 
But  suppose  it  was  far  short  of  the  actual  losses,  who  is  to 
blame  for  it  ?  Who  made  it  up  ?  It  is  said :  it  is  in  FarwelPs 
hand- writing.  Does  that  prove  that  it  was  made  wholly  upon 
his  judgment  ?  By  no  means.  It  may  have  been,  and  proba- 
bly was,  based  upon  the  combined  judgment  of  all  the  pai'tners. 

Mr.  Leiter,  in  his  last  deposition,  testifies,  "  that  at  about  that 
"  time  the  partners  were  in  secret  consultation  for  some  time." 

But  suppose  it  was  too  large  or  too  small  an  estimate  of  the 
losses ;  is  that  strange  ?  Was  there  ever  a  profit  and  loss  ac- 
count made  up  without  mistakes  ?  The  very  nature  of  the 
losses  of  a  mercantile  house,  resulting  mainly  from  debts,  ren- 
ders it  impossible  to  say  in  many  cases,  what  amount  is,  and 
what  amount  is  not  good.  A  man  that  is  good  to-day,  may 
be  worthless  to-morrow,  and  the  man  that  is  not  worth  a  pen- 
ny to-day,  may  be  worth  his  thousands  to-morrow.  A  profit 


88 

and  loss  account  made  tip  from  debts  due  a  firm,  cannot  be 
made  up  with  any  certainty  of  accuracy.  The  most  that  can 
be  done,  is  an  approximation  to  the  amount  of  the  real  losses, 
Avhich  are  always  the  subject  of  correction.  At  that  time, 
especially,  it  was  an  impossibility  to  get  at  the  true  amount  of 
loss.  And  who  was  to  blame  for  it?  No  one.  It  Avas,  in 
fact,  a  mere  matter  of  judgment,  and  the  means  or  grounds  of 
that  judgment  Avere  open  alike  to  ah1  the  partners  ;  and  they, 
severally,  are  responsible  to  themselves  alone  for  the  same,  un- 
der the  bill  and  answer  and  the  evidence. 

But  it  may  be  said  that  there  is  a  difference  between  Wads- 
Avorth's  account,  as  per  this  "Exhibit  A,"  and  his  account  as 
it  stood  upon  the  books  on  the  1st  day  of  February,  1862.  It- 
is  true,  there  is  a  difference  in.  the  grand  balance,  and  it  con- 
sists in  the  folloAving  items,  Avhich  Avere  not  made  up  until  the 
31st  of  January,  1862,  to  Avit : 
First  interest  on  Wadsworth's  private  account, 

amounting  to  -  $3,651.90 

Amount  due  on  salaries  for  that  year,, of  $16,076.38, 

one-fourth  of  which   Avas  chargeable   to   Wads- 

Avorth's  account,  to  Avit,  -     4,014.09 

Interest  paid  for  money  loaned  to  pay   debts  after 

January  20,  1862,  amounting  to  $1,159.66 

Expenses  not  posted  up,  3,154.40 


$4,314.06 

One-fourth  of  which  belonged  to  Wads- 
Avorth,  to-Avit,        -  -     1,078.51 


Making  an  amount  of  -       $8,744.50 

Avhich  Avas  not  embraced  in  said  Exhibit.  By  adding  these  to 
the  said  Exhibit  A,  and  AVC  find  that  his  grand  balance  as 
shown-by  the  books  of  account  after  they  Avere  fully  made  up, 
substantially  agree  Avith  his  grand  balance  as  shoAvn  by  said 
"  Exhibit  A." 

After  all  the  proof  that  Ave  have  referred  to  upon  the  matter 
of  complainant's  knoAvledge  of  his  private  account  relatively  to 
his  partners,  shoAving  that  he  kneAV  just  IIOAV  his  and  their 
accounts  stood,  relatively,  he,  oiipage  19  of  Bill,  alleges,  "that 
he  received  the  notes  of  said  firm  (C.,  F.  &  Co.)  for  $10,000  as 
stated  in  said  Avriting,  meaning  said  agreement  of  the  21st  of 


89 

January,  1862:  "that  the  same  were  charged  to  his  private 
"  account  on  the  books  of  said  firm,  and  that  Cooley  &  Far- 
"  well  charged  the  said  merchandise  to  their  private  accounts ; 
"  and  your  orator  shows  that  he  was  induced  to  sign  the  above 
"  writing  (to-wit,  of  the  21st  of  January,  1862,)  and  enter  into 
"  the  stipulations  thereof  solely  by  the  representations  of  said 
"  Cooley  &  Farwell,  above  mentioned ;  that  he  knew  nothing 
"  as  to  the  relations  which  his  private  account  bore  to  the  pri- 
"  vate  account  of  his  partners,  except  as  they  informed  him, 
"  and  unless  he  had  believed  the  aforesaid  statements  of  his 
"  partners  he  would  never  have  assented  to  the  aforesaid 
"  arrangement."  It  would  seem  from  this,  when  we  compare 
it  with  other  portions  of  his  bill,  and  especially  when  we  con- 
sider it  under  the  evidence  that  complainant  was  wholly 
regardless  of  both  truth  and  consistency. 

ELEVENTH  ALLEGATION. 

On  page  19  and  20,  complainant  further  alleges,  "that  his 
"  partners  have  retained  the  exclusive  control  of  the  said  assets 
"  and  business  of  the  late  firm  (of  C.,  F.  &  Co.^;  that  by 
"  the  terms  of  the  last  named  writing,  he  had  assented  to  their 
"  so  doing,  and  that,  consequently,  he  did  not  interfere  with 
"  their  proceedings  (and  why  ?  because  he  wanted  them  to 
"  collect  his  share  of  said  assets  and  relieve  himself  therefrom, 
"  after  the  debts  of  Cooley,  Farwell  &  Co.  were  paid),  that 
"  they  delayed  making  a  final  settlement  a  long  time,  and  that 
"  your  orator  became  somewhat  impatient  and  urged  them  fre- 
"  quently  to  settle  with  him,  but  their  invariable  reply  was, 
"  that  the  firm  debts  were  not  yet  paid  and'  the  assets  in  no 
"  condition  to  divide.  *  *  *  And  that  on  or  about  the 
"  28th  day  of  January,  1863,  he  received  a  note  of  that  d«te 
"  signed  by  his  said  partners,  Cooley  &  Farwell,  to  the  effect 
"  that  the  debts  of  the  old  firm  of  C.,  F.  &  Co.  had  been  liqui- 
"  dated,  and  they  were  ready  to  divide  the  remaining  assets,  as 
"  per  agreement  executed  upon  expiration  of  said  copartner- 
"  ship." 

By  referring  to  said  agreement,  made  on  the  21st  of  January, 
1862,  it  will  be  seen,  that  by  it  "nothing  further  (was)  is  to 
"  drawn  from  the  assets  of  the  aforesaid  firm  (of  C.,  F.  &  Co.) 
"  or  of  the  firm  of  Cooley,  Wadsworth  &  Co.,  until  the  copart- 

12 


90 

"  nership  debts  of  Cooley,  Farwell  &  Co.,  are  fully  paid,  after 
"  which  the  remaining  assets  of  both  firms  shall  be  .divided 
'•'•pro  rata,  according  to  the  amounts  due  each." 

Mr.  Spink  testifies  on  page  119,  int'y  108,  "that  the  books 
"  show  that  the  bills  payable  were  closed  on  the  23d  day  of 
"January,  1863." 

Mr.  Leiter  testifies  on  page  "  that  the  debts  of  the 

"  said  firm  of  C.,  F.  &  Co.  were  paid  on  the  24th  day  of 
"January,  1863." 

Mr.  Spink  testifies,  011  pages  115  and  116,  int'y  99,  "  that  in 
"  order  to  pay  said  debts,  the  2d  firm  of  C.,  F.  &  Co.,  (com- 
"  posed  of  Cooley,  Farwell  &  Field)  advanced  at  one  time  the 
"  sura  of  $202,612.34,  and  that  the  average  advances,  from  the 
"  1st  of  March,  1862,  to  the  1st  of  January,  1863,  was  $86,- 
"  500.00,  and  that  the  average  balance  of  the  same  from  the 
"  1st  day  of  April,  1862,  to  the  1st  day  of  September,  1863, 
"  was,  in  round  figures,  $109,000." 

From  this  testimony  it  is  conclusively  proved,  that  Cooley 
&  Farwell,  so  soon  as  the  debts  were  paid,  they  gave  notice 
of  the  fact  to  Wadsworth,  and  they  were  ready  to  divide  the 
remaining  assets  under  said  agreement.  On  page  579,  int'y 
45  and  46,  Mr.  Leiter  testifies,  upon  the  preparation  for  a  divi- 
sion of  said  assets,  that  "  numbered  lists  of  notes,  accounts  and 
"  real  estate  were  made  by  Mr.  Farwell,  and  tickets  with  cor- 
"  responding  numbers  on  them,  in  the  spring  of  1863,  after  the 
"  debts  were  paid ;  and  in  answer  to  the  58  int'y,  he  says,  no 
"  division  has  taken  place,  as  he  understands."  On  page  593, 
"  int'y  73,  Mr.  Leiter  testifies,  "  that  on  the  6th  of  February, 
"  1863,  Mr.  Wadsworth  received  of  the  collections  of  said 
"  remaining  assets,  the  sum  of  $3,497.77." 

Wadsworth  admits  the  notice  to  him  of  the  payment  of  the 
debts,  and  readiness  of  Cooley  and  Farwell  to'  divide  the 
remaining  assets,  on  the  28th  of  January,  1863;  and  it  will  be 
seen  by  the  testimony  of  Mr.  Bnllard,  on  page  680-1,  that  he 
was  on  the  18th  of  May,  1863,  again  notified  of  the  payment  of 
said  debts  and  of  their  desire  to  divide  the  remaining  assets 
under  said  agreement.  And  notwitstanding  these  notices,  he 
boldly  affirms,  that  he  was  and  had  been  vainly  endeavoring  to 
get  Cooley  and  Farwoll  to  divide  the  said  assets,  and  they 
refused  so  to  do.  Wadsworth,  and  not  Cooley  and  Farwell, 
has  refused  to  divide  said  "  remaining  assets."  And  whv  does 


he  refuse?  His  excuse  is  (as  set  forth  in  his  bill  oh  page  '20), 
"  that  the  said  Cooley  &  Farwell  had  not  turned  sai<f  //.»v.w* 
"  into  money,  and  therefore  they  were  in  no  condition  to  divide, 
"  except  the  goods."  They  never  agreed  to  turn  said  assets 
into  money  before  they  were  to  be  divided.  Where  is  tin- 
proof  that  they  made  any  such  agreement  with  him';*  There 
was  none  made,  and  there  cannot  be  any  proof  of  any.  Mark! 
He  does  not  say  that  he  refused  to  divide  because  deceit  and 
false  statements  had  been  used ;  but  that  "  they  had  not  turned 
ft  aid  assets  into  money,  except  the  goods."  The  goods  did  not 
belong  to  the  firm.  They  liad  long  before  been  disposed  of. 
Was  he  ignorant  of  this?  By  no  means.  Why  then  does  he 
call  them  assets?  Simply  to  keep  his  farce  before  the  Court. 
As  soon  as  there  was  a  sufficient  amount  of  money  realized 
from  said  assets  to  pay  the  debts  of  the  firm  of  C.,  F.  <fc  Co., 
the  debts  were  to  be  paid,  and  then,  without  waiting  to  convert 
any  more  of  said  assets  into  money,  the  remaining  portion 
thereof  were  to  be  divided  pro  rata  between  the  said  partners, 
according  to  the  amount  "  due  to  each  "  partner — (see  agree- 
ment on  page  642).  AS  soon  as  there  was  money  sufficient  to 
pay  the  debts  they  were  paid,  and  there  was  no  more  money 
left  to  divide.  "The  remaining  assets,"  were  to  be  divided  pro 
rata  between  the  partners,  according  to  the  amount  due  to  each. 

The  next  thing  to  be  done  under  said  agreement  was  to  di- 
vide said  assets,  not  to  convert  them  into  money  and  then  di- 
vide them.  '  This,  Cooley  &  Farwell  had  notified  him  to  do ; 
but  he  says,  "  he  found  them  in  no  condition  to  divide,  bi-fo>tx<j 
they  were  not  converted  into  money  /"  He,  and  not  Cooley  & 
Farwell,  has  refused  to  divide  said  "  remaining  assets1'  under 
said  agreement. 

In  this  connection,  I  desire  to  call  special  attention  to  one 
clause  in  said  agreement  of  the  21st  January,  1862,  which  de- 
fines clearly  the  meaning  of  the  parties  thereto,  upon  the  ques- 
tion of  compensation  or  of  consideration,  in  part,  for  the 
services  of  Cooley  &  Farwell,  in  paying  said  debts  with  said 
assets.  It  is  as  follows:  "  The  profits  of  c</r/t  member  of  the 
"  aforesaid  firm  of  Cooley,  Farwell  d  <  '<>.  In  ing  determinedly 
Li  the  sale  of  the  stock  (of  merchandise)  //.s  before  stated,  (to 
"  Cooley  t£  Farwell},  as  shown  by  the  profit  and  loss  account, 
"  all  expenses  of  closing  the  business  of  said  firm  will  be  paid 
'•'•from  the  assets  left  in  the  hands  of  Cooley  &  Farwell  for 
"  that  purpose" 


92 

By  this  clause  of  said  agreement,  it  is  evident  that  the  par- 
ties thereto  intended  by  it  to  compensate  Cooley  &  Farw  ell  for 
their  services  as  well  as  for  their  expenses  in  converting  a  suf- 
ficient amount  of  said  assets  into  money,  to  pay  said  firm's 
debts  with.  The  reason  given  is  plain  and  reasonable, 
to  wit,  "the  profits"  of  that  firm  "were  determined  by  the 
sale  of  the  merchandise  to  Cooley  &  Farwell."  The  profits 
being  determined — ended — therefore  they  could  not  be  com- 
pensated for  such  services  from  profits  arising  from  the  business, 
therefore  the  "  remaining  assets"  that  should  be  on  hand  after 
the  payment  of  the  debts,  were  to  be  first  applied  to  the  pay- 
ment of  '•  all  expenses  of  closing  the  business  of  said  firm,  left 
"  in  the  hands  of  Cooley  &  Farwell  for  that  purpose,"  and 
then  a  division  of  the  "remaining  assets"  is  to  be  made,  "pro 
rata,  between  the  partners,  according  to  what  is  due  to  each." 
The  testimony  shows  that  no  consideration  has  been  received, 
and  no  charge  made  in  the  books  of  account  for  said  services. 
And  it  10 ill  also  be  noticed,  that,  by  this  clause  of  said  agree- 
ment, the  said  partners,  one  and  all  and  each  of  them,  exam- 
ined the  book  accounts  of  said  firm,  and  in  fact  made  the 
basis  for  making  up  the  profit  find  loss  account,  before  said 
agreement  of  the  iilst  of  January,  1862,  was  entered  upon,  and 
which  was  a  part  of  said  agreement.  Take  this  clause  and 
compare  it  with  the  said  "  Exhibit  A,"  on  page  44  of  Spink's 
deposition,  and  this  court  can  come  to  but  one  conclusion,  to- 
wit ;  that  there  was  a  full  accounting  had  between  the  part- 
ners at  that  time,  and  that  the  said  division  of  the  merchandise 
of  the  firms  of  C.,  W.  &  Co.,  Nos.  1  and  *2,  between  the  part- 
ners in  the  ratio  of  profits ;  and  that  the  agreement  to  cast 
interest  upon  deficit  and  surplus  of  capital  in  the  firm  of  C.,F. 
&  Co.,  and  that  an  estimate  of  the  losses  of  the  firm  of  C  ,  F. 
&  Co.,  were  all  taken  into  such  accounting  at  the  time,  and  be- 
fore the  said  agreement  was  made  as  aforesaid,  and  were  made 
a  part  of  it. 

TWELFTH  ALLEGATION. 

On  page  20,  complainant  states,  "  that  the  mode  of  division 
"  (of  assets)  proposed  by  Cooley  &  Farwell  was  not  to  convert 
"  the  same  into  money  and  divide  the  proceeds  pro  rata  among 
"  the  several  partners,  but  to  draw  lots  for  them  in  kind,  *  * 
"  and  that  they,  (C.  &  F.),  had  appraised  said  assets,  and  your 
"  orator  was  not  consulted  as  to  said  appraisal,  and  had  no 
"  voice  therein,  and  never  assented  to  the  same;  *  *  and 


93 

"  he  insists  that  said  appraisal  is  fictitious,  and  is  a  large  over- 
"  estimate  of  the  true  value  of  such  assets." 

By  this  allegation  he  desires  the  court  to  believe  that  there 
was  an  attempt  on  the  part  of  Cooley  &  Farwell  to  coerce  him 
into  a  division  of  the  said  remaining  assets  upon  an  estimate 
and  classification  entirely  fictitious.  Is  there  any  evidence  to 
show  that  Cooley  &  Farwell  or  either  of  them  sought  to  co- 
erce him  into  a  division  upon  their  estimate  or  valuation,  or 
upon  a  ficticious  valuation  ?  None,  whatever. 

Now,  if  complainant  was  as  ignorant  of  the  value  of  said 
"  remaining  assets"  as  he  pretends  to  be,  how  did  he  know  that 
the  valuation  (if  one  was  made)  of  Cooley  &  Farwell  was 
"  fictitious,  and  an  over-estimate  of  the  true  valuation  ?"  Does 
he  not,  by  this  statement,  clearly^  admit  his  knowledge  of  these 
assets  and  their  true  valuation  ?  Does  he  not  admit  that  he 
knew  of  the  relative  value  of  each  lot  ?  He  does  not  say  that 
he  is  informed  and  believes  the  valuation  was  "fictitious  and 
an  over-estimate,"  but  that  he  knows  it  to  be  so.  How  does 
he  know  it  except  he  was  familiar  with  the  same — that  is,  with 
the  books  of  account,  the  notes  or  bills  receivable,  the  bonds, 
&c  ?  To  know  their  value  was  to  know  all  about  the  books, 
and  the  business  of  the  eaid  firm. 

THIRTEENTH  ALLEGATION. 

On  page  20  of  bill,  complainant  states  :  "  And  your  orator 
"  further  sheweth,  that  at  the  date  of  the  proposed  division  of 
"  such  assets,  (as  aforesaid),  said  Marshall  Field  had  been  fully 
"  paid,  and  the  private  accounts  of  said  Cooley  &  Farwell 
"  were,  pro  rata,  largely  in  excess  of  your  orator's  private  ac- 
"  count,  and  that  in  order  to  equalize  said  private  accounts,  a 
"  very  large  sum  of  money  was  due  to  your  orator  from  his 
"  said  copartners,  and  that  if  your  orator's  private  account  had 
"  been  made  equal  to  the  private  accounts  of  his  said  partners, 
"  by  drawing  from  said  remaining  assets  in  the  manner  propo- 
"  sed  as  aforesaid  by  his  said  partners,  your  orator's  loss  would 
"  have  been  immense  by  reason  of  the  excessive  valuation 
"  placed  upon  such  assets,  (as  aforesaid)." 

This  allegation  the  defendants  deny. 

First.  As  we  have  already  seen,  under  the  7th  noted  alle- 
gation of  bill,  (see  ants.,  pages  61-2,)  Mr.  Field  was  only  a  clerk 
for  said  firm  of  C.,  &  Co.,  and  a  creditor  of  said  firm,  and 
therefore  should  be  paid  in  full,  as  other  creditors  were. 


94 

Second.  As  to  that  part  of  the  allegation  which  asserts  for 
the  third  or  fourth  time,  that  "  the  private  accounts  of  Cooley 
"  &  Farwell  were,  pro  rata,  largely  in  excess  of  complainant's 
"  private  account,  and  that  in  order  to  equalize  said  private 
"  accounts,  a  very  large  sum  of  money  was  due  complainant 
"  from  his  said  partners  ;"  we  have  only  to  refer  the  court  to  a 
full  discussion  of  this  matter — first,  under  the  sixth  noted  al- 
legation, see  ante.,  57  to  Gl,  inclusive,  and  especially  to  the 
consideration  of  the  evidence  collated  under  the  "Tenth  Alle- 
gation," (see  ante.,  pages  78  to  89  inclusive,  to  show  how  false 
it  is. 

But  before  dismissing  this  allegation,  we  desire  to  call  at- 
tention to  the  said  alleged  "  excessive  valuation  placed  upon 
"  said  assets  by  Cooley  &  Farwell"  by  which  "  complainant's 
"  loss  would  have  been  immense." 

The  evidence  shows  that  there  were  assets  on  hand  to  be 
divided  between  the  said  partners  after  the  payment  of  all  the 
debts  of  the  said  firm,  the  nominal  amount  of  about  $280,299.- 
75,  and  that  before  the  correction  of  the  said  errors,  by  Mr. 
Spink,  hereinbefore  mentioned,  the  pro  rata  share  of  each 
partner's  interest  therein  was  as  follows  : 

Cooley's  -$128,496.14 

Wadsworth's  103,231.15 

Farwell's       -  -  -         -       48,571.46 


Making  the  total  amount  as  above,  -     $280,299.75 

See  Spink's  ev.,  page  74,  cross  int.  31.  But  in  this  answer  of 
Mr.  Spink,  he  treats  the  Wabash  Avenue  building  account  of 
$7,943.06,  and  the  interest  thereon,  as  unpaid ;  but,  as  we  have 
already  seen,  this  account  has  been  paid  by  Mr.  Cooley,  and 
the  money  thereof  so  paid  went  to  pay  the  debts  of  said  firm, 
and  hence  Cooley's  interest  in  said  remaining  assets  are  in- 
ci'eased  to  the  amount  of  said  building  account,  over  the  said 
balance  named  by  Mr.  Spink  in  his  said  answer,  and  thus 
Cooley's  said  balance,  according  to  Mr.  Spink,  would  be  as 
above  stated. 

Now,  suppose  this  valuation,  (if  it  may  be  called  one),  or 
rather,  these  nominal  balances,  could  not  be  realized  from  said 
nominal  amount  of  assets,  and  that  the  said  assets  were  not 
worth  more  than  one-half  of  their  nominal  amount. 


95 

The  whole  nominal  amount  being  -       §280,299.75 

Half  of  this  would  be  140,149.87! 

What  is  the  effect  of  such  a  depreciation  upon  the  relative 
rights  and  interests  of  the  partners  ?  Why,  simply  to  reduce 
their  nominal  account  of  their  several  interests  therein  to  half 
of  the  said  nominal  amount ;  and  then 

Cooley's,  instead  of  being  $128,497.14,  would  be  $64,248.57 
Wadsworth's,instead  of  being  $103,231.15  wo'ldbe  $51,615.57^ 
FarwelPs,  instead  of  being  $48,571.46,  would  be  $24,285.73 
This  reduction  of  the  nominal  balances  does  not  change  the 
real  value  of  the  assets,  nor  the  pro  rata  interests  of  the  several 
partners  therein.  It  simply  reduces  the  nominal  value  of  the 
said  "  remaining  assets"  to  a  supposed  real  value  of  the  same, 
and  in  so  doing  the  relative  interests  and  rights  of  the  partners 
therein  are  the  same  under  both  valuations.  This  mode  of  the 
division  of  the  "  remaining  assets"  between  the  partners,  is 
one,  made  by  the  agreement  of  the  said  partners  after  their 
said  accounting  and  settlement  was  had,  and  was  one  of  the 
considerations  rendered  by  complainant  to  Cooley  &  Farwell 
for  their  great  undertaking  to  pay  the  debts  of  the  said  firm 
with  the  assets  thereof,  and  relieve  the  complainant  from  all 
labor  and  care  about  the  payment  of  said  debts.  The  said 
agreement  of  the  21st  of  January,  1862,  recognizes  this  among 
other  considerations,  for  the  division  of  the  "remaining  assets" 
between  the  partners  in  the  "pro  rata"  amount  of  the  several 
interests  of  the  said  partners  therein.  Another  consideration 
was,  the  said  Wadsworth  received  $10,000  of  the  firm's  notes 
or  money  at  that  time.  Another  was,  that  Cooley  &  Farwell 
were  to  take  of  the  firm  the  goods  on  hand,  at  the  invoice  price 
or  nominal  valuation  of  the  same.  This  agreement  on  the  part 
of  Cooley  &  Farwell  was  fulfilled  to  the  letter.  The  complain- 
ant himself  fulfilled  all  the  conditions  thereof,  until  the  time 
came  to  divide  the  "  remaining  assets,"  after  the  payment  of 
the  debts.  He  obtained  from  the  firm,  first,  $10,000,  in  its 
notes  and  money ;  second,  he  obtained  the  labor  and  skill  of 
Cooley  &  Farwell  for  one  year  in  converting  sufficient  of  the 
assets  to  pay  the  debts  of  the  firm  ;  and,  third,  he  received  from 
Cooley  &  Farwell  a  release  of  his  personal  labor  and  care  in 
converting  said  assets  into  money  sufficient  to  pay  the  said 
debts  ;  and,  then,  after  having  reaped  the  great  benefits  of  said 
agreement- to  himself,  he  then  turns  round,  and,  while  grasping 


96 

and  holding  all  the  benefits  of  the  agreement,  and  without  of- 
fering to  restore  one  of  them,  either  to  the  firm  or  to  Cooley  & 
Farwell,  he  comes  into  this  court  and  asks  it,  not  only  to  allow 
him  to  continue  to  hold  and  enjoy  all  the  benefits  of  said  agree- 
ment, but  to  aid  him  in  taking  from  Cooley  &  Farwell  the  ben- 
fits  which  are  supposed  to  accrue  to  them  under  the  said 
agreement.  But  complainant  and  his  counsel  say,  "  that  com- 
"  plainant's  account  in  the  firm  of  Cooley,  Farwell  &  Co.  was 
"  not  largely  over-drawn,  and  that  it  stood  relatively  as  well 
"  as  his  partners',  and  much  better  than  Farwell's."  The  evi- 
dence shows  that  the  complainant's  account  was-  largely  over- 
drawn. Mr.  Spink  says,  on  page  111,  cross-int.  87,  that  "In 
the  firm  of  Cooley,  Farwell  &  Co.,  the  partners'  accounts 
stood,  on  the  21st  day  of  January,  1862,  as  follows  : 
Cooley  drew  $53,311.86 

Wads  worth  drew  52.376.38 

Farwell  drew  (erroneously  including  the  sum 

of  $5,000,  loaned  to  him,  and  the  interest 

thereon),  37,364.71 

Now,  it  will  also  be  remembered  in  this  connection  that  Mr. 
Spink  also  testifies  that  the  partners'  drafts,  (the  original  agree- 
ment having  been  violated  in  this  particular),  should  be  in  their 
ratio  of  profits.  Thus  Cooley  was  entitled  to  draw  twice  the 
amount  of  complainant,  and  Farwell  was  entitled  to  draw  an 
equal  amount  to  that  of  the  complainant. 

Upon  this  ratio  of  the  relative  amounts  the  partners  had  a 
right  to  draw,  according  to  the  evidence,  as  follows:  Mr. 
Spink  testifies,  on  pages  112  and  88,  "  that  Cooley  &  Farwell 
"  would  have  been  entitled  to  draw  $66,452.57  over  and  above 
"  the  amount  they  did  draw,"  to  be  equal  in  their  drafts,  rela- 
tively, to  that  of  Wadsworth's  drafts.  Surely,  this  looks  as 
though  the  complainant's  account  was  on  the  said  21st  day  of 
January,  1862,  relatively  largely  overdrawn. 

Now  if  these  "  remaining  assets,"  were  not  worth  one  cent, 
and  the  proof  declared  them  wholly  worthless,  even  then  the 
said  considerations  and  conditions  mentioned  in  the  said  agree- 
ment, which  the  said  complainant  took  and  now  enjoys  under 
the  same,  would  not  allow  this  Court  to  compel  Cooley  and 
Farwell  to  make  up  the  complainant's  loss,  if  it  were  greater 
than  theirs;  and  because  of  the  said  conditions  and  considera- 
tions mentioned  in  said  agreement  which  were  taken  and  are 


97 

now  held  and  enjoyed  by  the  complainant  under  the  same. 
This  agreement  supercedes  all  the  said  original  articles  of  co- 
partnership. The  complainant  cannot  go  back  to  those  articles, 
and  abandon  the  said  agreement.  The  agreement  must  stand, 
for  it  is  paramount  to  them  and  complainant  cannot  presume 
to  go  back  to  said  01  Iginal  articles  of  copartnership,  unless  he 
1st  restores  the  parties  to  their  original  status,  by  returning 
the  said  $10,000  in  money,  and  reward  Cooley  &  Farwell  for 
their  years'  labor  under  the  said  agreement,  and  2d,  he  must 
2)rove  fraud  on  the  part  of  Cooley  and  Farwell  in  making  the 
said  agreement  as  aforesaid.  The  first  he  has  neglected  to  do. 
At  the  time  the  said  agreement  was  made,  said  "  remaining 
assets"  were  deemed  to  be  worth  in  money  about  $129,452.00 
— that  is,  the  loss  on  the  "  remaining  assets  "  were  estimated 
as  follows : 

On  those  of  the  firm  of  Cooley,  Farwell  &  Co.  about  $100,000.00 
"         «         "     Cooley,  Wadsworth&  Co.    "          49,015.29 

$149,015.29 

(See  Mr.  Leiter's  testimony  on  page  582,  int'y  59.) 
It  will  also  be  seen  from  the  testimony  of  Mr.  Leiter  on  page 
578,  int'y  36,  that  at  that  time  Mr.  Farwell  had  collected  upon 
said  remaining  assets  (since  the  payment  of  said  debts)  about 
the  sum  of  $  75,913.15 

that  the  real  estate  was  worth     -  30,840.00 

and  that  the  balance  of  said  assets  then  were  worth     26,841.00 
making  the  total  value  in  cash    -  -    $133,594.15 

instead  of        -         -     >••»-""     -  129,452.00 


as  per  said  estimate  made  at  the  time  said  agree- 
ment was  made,  making  a  difference  of  only  $5,421.14 
and  this   amount  more    valuable    than   they  had   estimated 
them  to  be. 

This  certainly  was  a  very  close  estimate.  Since  Mr.  Leiter's 
testimony  Avas  taken  some  $15,000  more  of  said  assets  have 
been  converted  into  money  by  Mr.  Farwell,  and  we  have  no 
doubt,  but  that  the  said  "  remaining  assets"  will  realize  much 
more  than  was  estimated  by  the  partners  at  the  time  the  said 
agreement  of  the  21st  of  January,  1862,  was  made.  However 
this  may  be,  as  long  as  there  is  valuable  "  remaining  assets," 
sufficient  to  equali/e  the  accounts  between  the  partners,  neither 
are  harmed  and  jioue  should  complain.  That  there  would  not  be 


98 

such  a  sufficiency,  was  a  contingency  not  provided  for  by  said 
agreement,  or  anticipated  by  said  partners.  Had  they  failed 
to  realize  from  said  assets  no  more  than  was  siifficient  to  pay 
said  debts,  that  circumstance  would  not  change  the  relative 
rights  and  interests  of  the  partners  under  said  agreement,  nor 
would  it  affect  the  said  agreement  or  the  settlement  then  made. 

FOURTEENTH  ALLEGATION. 

On  pages  21  and  22  of  complainant's  bill,  he  alleges,  "  that 
"  after  he  received  the  said  notice  to  divide  said  "  remaining 
"assets,"  to-wit,  on  the  28th  of  January,  1862,  "he  speedily 
"  discovered  a  multitude  of  errors  in  the  said  copartnership 
"  books,  all  of  which  were  to  his  prejudice,  and  that  at  the 
"  time  of  the  extension  of  said  copartnership  (of  C.,  F.  &  Co.) 
"  under  the  articles  of  agreement  of  December  4th,  1865,  to- 
"  wit,  on  the  1st  of  February,  1857,  there  was  charged  to  your 
"  orator's  private  account  on  the  books  of  C.,  W.  &  Co.,  the 
"  sum  of  $11,087.03,  and  to  FarwelPs  the  sum  of  $11,062.84; 
"  that  shortly  before  this  C.  &  F.  had  built  the  store  occupied 
"  by  the  firm,  with  the  funds  of  the  firm  of  C.,  W.  &  Co.,  and 
"  that  an  account  thereof  was  kept  in  the  name  of  '  ^Building 
"  Account,'  and  that  there  was  a  balance  due  on  said  account 
"  at  that  time  of  $9,475.46,  and  that  half  of  it  should  have  been 
"  charged  to  Farwell's  account,  thereby  increasing  his  private 
"  account  at  that  date  to  $15,800.57.  And  your  orator  at  the 
"  date  of  the  extension  of  said  firm  as  aforesaid,  under  the 
"  name  of  C.,  F.  &  Co.,  your  orator  stood  better  than  Farwell 
"  upon  the  books,  by  $35,000 — and  that  by  the  said  agreement 
"  of  extending  said  firm  (of  C.,  W.  &  Co.)  under  the  name  of 
"  C.,  F.  &  Co.,  it  was  stipulated  that  the  capital  should  be 
"  paid  in  as  fast  as  collected,  *  *  and  that  the  effect  of 
"  said  stipulation  was  to  leave  the  partners  in  the  same  relative 
"  position  as  to  capital  as  before.  And  that  Farwell,  regard- 
"  less  of  his  duty  and  in  direct  violation  of  the  stipulation  in 
"  said  agreement  of  extension,  opened  new  books  and  transferred 
"  the  available  assets  in  manner  following,  to-wit,  CHARGING 
"  THE  CONCERN  (firm  of  C.,  F.  <£  Co.)  WITH  THE  MERCHAN- 
"DISE  (on  hand)  VALUED  AT  $115,369.84  AS  STOCK,  AND  CRE- 

"  DITING  COOLEY  ON  HIS  SUBSCRIPTION  TO  SAID  STOCK  ACCOUNT 
"  HALF  OF  THE  SAME,  VIZ.  :  $57,684.92  ;  AND  CREDITING  HIM- 
"  SELF  AND  YOUR  ORATOR  ON  THEIR  SEVERAL  SUBSCRIPTIONS  TO 


99 

"  SAID  STOCK,  ONE-QUARTER  OF  THE  AMOUNT  THEREOF,  OR    THE 

"  SUM  OF  $28,842.46  TO  EACH  ;  and  then  claims  that  such  mer- 
"  chandise  should  have  been  divided  in  the. ratio  of  the  capital 
"  of  the  firm  of  (7.,  W.  &  Co. ;  that  by  the  division  made  of 
"  said  merchandise,  Farwell  appeared  to  have  overpaid  his 
"  said  subscription  more  than  $8,000,  while  his  (Wadsworth's) 
"  subscription  appeared  to  be  less  than  half  paid.  He  then 
"  alleges  on  page  24,  that  although  interest  was  to  be  paid 
"  under  the  first  agreement  of  copartnership,  yet,  by  said  stipu- 
"  lation  it  was  omitted;  but  his  partners,  in  violation  of  said 
"  stipulation,  charged  interest  against  him  upon  his  nominal 
"  subscription  of  $80,000 — up  to  the  time  of  the  dissolution  of 
"  said  firm,  and  thereby  interest  run  against  him  to  a  large 
"  amount,  and  that  this  was  done  without  his  knowledge  or 
"  consent." 

From  this  allegation,  complainant  charges  that  nine  things 
have  been  done  by  his  partners  in  violation  of  their  agree- 
ments with  him,  to  wit : 

1st.  That  on  the  28th  of  January,  1863,  when  he  received 
the  said  notice  to  divide  the  said  "  remaining  assets,"  as  afore- 
said, he,  (the  said  complainant,)  speedily,  at  once,  at  that  time, 
discovered  a  multitude  of  errors,  and  all  to  his  prejudice. 

2d.  The  first  error  was  :  Farwell's  store  building  account 
was  not  charged  to  him,  but  was  kept  in  a  separate  "  Building 
Account." 

3d.  The  second  was  :  Farwell's  stock  account  was  more 
than  paid,  while  complainant's  was  not ;  when,  in  fact,  he  stood 
$35,000  better  in  his  account  than  Farwell. 

4th.  That  the  said  firm  of  C.,  F.  &  Co.,  was  treated  by 
Cooley  and  Farwell  as  a  new  firm ;  whereas,  in  fact,  it  was  only 
a  continuance  of  the  firm  of  C.,  W.  &  Co.,  No.  2. 

5th.  That  Farwell,  in  violation  of  the  agreement  of  the 
partners,  opened  new  books  for  the  firm  of  C.,  F.  &  Co.,  as  a 
new  firm,  and  transferred  the  merchandise  on  hand  at  that  time 
to  the  stock  account  of  C.,  F.  &  Co.,  as  a  new  firm. 

6th.  That  Farwell,  in  violation  of  the  agreements  of  the 
partners,  then  divided  the  said  merchandise  so  transferred  be- 
tween the  partners  in  the  ratio  of  their  share  in  the  profits,  by 
which  Cooley  received  half  of  the  same,  to  wit,  $57,684.92, 
and  Farwell  and  himself  received,  each,  $28,842.46,  and  that 


100 

said  respective  amounts  were  credited  to  the  stock  account  of 
each  partner  in  the  said  firm  of  C.,  F.  &  Co. 

7th.  That  said  merchandise  should  have  been  divided  be- 
tween the  partners  in  the  ratio  of  their  capital  in  the  firm  of 
C.,  W.  &  Co. 

8th.  That  Cooley  and  Farwell  charged  him,  in  violation  of 
their  agreement  with  him,  interest  upon  his  nominal  capital 
stock  of  $80,000,  without  his  knowledge  or  consent. 

9th.  That  the  effect  of  all  this,  was  to  show  that  Farwell 
had  overpaid  his  capital  stock,  and  that  he  was  short  in  his. 

1st.  We  have  already  shown  that  the  said  store  "building 
account "  was  kept  separate  upon  the  books,  in  order  to  keep 
an  account  of  its  costs,  for  convenience  sake,  and  that  Mr. 
Spink  testifies  that  there  "  was  no  impropriety  or  injury  done 
to  either  of  the  partners  by  its  being  so  kept,"  and  that  there 
"  was  propriety  in  so  keeping  it."  We  have  also  shown  that 
the  same  was  paid  by  Cooley  and  Farwell  with  interest  thereon. 
And  we  have  likewise  shown,  by  both  Mr.  Spink  and  Mr. 
Loiter,  that  the  Wabash  Avenue  building  account  was  desig- 
nated as  follows:  "  Wabash  Av.  Building  Account,  F.  H.  (?.," 
meaning,  thereby,  that  it  belonged  to  Francis  IB.  Cooley,  and 
that  he  paid  the  same  with  interest  thereon,  and  that  no  one 
was  injured  4n  any  manner  thereby,  and  that  there  was  "  no 
impropriety  in  so  keeping  it."  For  the  evidence  sustaining 
these  declarations,  see  the  "  Tenth  Allegation,"  ante  pages 
from  78  to  89. 

2d.  We  have  also  shown  that  the  private  account  of  com- 
plainant was,  relatively,  largely  overdrawn,  and  for  the  proof 
of  this,  see  ante  pages  53  to  57,  inclusive.  It  is  true  that  com- 
plainant upon  this  point  claims,  that  at  the  time  he  made  the 
said  agreement  of  the  21st  of  January,  1862,  he  made  a  mis- 
take in  looking  over  his  and  his  partners'  private  accounts,  and 
that  "  he  did  not  discover  his  mistake,"  (that  his  account  was 
relatively  overdrawn)  until  he  received  the  said  notice  on  the 
28th  of  January,  1863,  to  divide  said  "  remaining  assets  "  when 
lie  caused  the  books  to  be  re-examined.  For  the  evidence  of 
this,  see  ante  pages  57  to  61,  inchisive. 

3d.  We  have  also  shown,  that  at  the  close  of  the  first  firm 
of  C.,  W.  &  Co.,  there  was  a  new  firm  formed  by  the  same 
name,  but  that  it  was  formed  on  far  different  terms ;  and  that 
at  the  close  of  the  said  2d  firm  of  C.,  W.  &  Co.,  another  new 


101 

linn  was  organized,  also  upon  different  terms,  under  the  naine 
of  C.,  F.  &  Co.,  and  that  the  2d  firm  was  not  a  continuance 
of  the  1st,  nor  the  3d  firm  a  continuance  of  the  2d  finn ;  and 
that  the  merchandise  of  one  firm  was  transferred  to  the  suc- 
ceeding firm,  and  then  divided  between  the  partners  in  the 
ratio  of  profits,  and  then  each  partner's  share  of  such  division 
w:is  credited  to  his  new  capital  stock  at  the  invoice  price,  and 
that  this  was  in  conformity  to  the  agreement  of  the  part- 
ners, and  that  complainant  was  a  party  to  these  transactions, 
and  knew  all  about  them.  For  the  evidence  of  this,  see  ante 
pages  39  to  50,  inclusive,  and  pages  78  to  89,  inclusive,  (and 
Spink's  ev.,  pages  111  and  112,  cross  87  and  88.) 

If  there  were  no  new  firms  formed  on  new  terms  and  condi- 
tions, by  which  the  relative  rights  and  interests  of  the  several 
partners  were  changed  from  that  of  the  preceding  firm,  how 
can  complainant  claim  that  Farwell's  capital  stock  was  not, 
relatively,  greater  than  his  ?  Let  us  examine  this.  And  to  do 
so  we  will  recall  the  substance  of  a  former  illustration,  and 
suppose,  that  in  the  2d  firm  of  C.,  W.  &  Co.,  there  was  just 
$200,000  net  assets.  Cooley's  share  of  this  is  just  half,  viz : 
$50,000  original  capital,  and  $50,000  profits,  mak- 
ing -  $100,000 
Wadsworth's  share  is  $40,000  original  capital,  and 

$25,000  profits,  making  65,000 

Farwell's  share  is  $10,000  original  capital,  and  $25,- 

000  profits,  making      .-  35,000 

Now  suppose  they  agree  to  continue  said  firm  and  to  put 
in  all  these  assets  as  capital  into  the  firm,  under  the  name 
of  Cooley,  Farwell  &  Co.  for  five  years,  does  not  even 
this  agreement,  without  reference  to  the  time  capital  of 
Cooley  and  Farwell,  change  the  relative  interests  of  the  part- 
ners from  that  of  the  said  2d  firm  of  C.,  W.  &  Co.?  Mani- 
festly, it  does;  and  how?  In  the  said  firm  of  C.,  W.  &  Co., 
there  was  $100,000  capital,  as  follows:  Cooley,  $50,000,  or 
half  of  the  same ;  Wadsworth,  $40,000,  or  two-fifths,  which 
would  be  sixteen-fortieths  of  the  same ;  Farwell,  $10,000,  or 
one-tenth,  which  is  four-fortieths.  In  the  firm  of  C.,  F.  &  Co., 
on  the  supposition  named,  of  $200,000  capital,  by  bringing 
down  the  several  interests  of  the  partners  in  the  said  firm  of 
C.,  W.  &  Co.,  and  putting  the  same  into  the  firm  of  C.,  F.  & 
Co.,  to  the  credit  of  each  partner  in  the  ratio  of  each  part- 


102 

ner's  interests  therein,  and  the  partners  would  stand  in  their 
several  capital  stock  to  each  other  as  follows  :  Cooley,  half, 
or  $100,000;  Wadsworth,  $65,000  or  thirteen-fortieths,  and 
Far  well,  $35,000,  or  seven-fortieths,  which  would  be  a  gain  of 
capital  by  Farwell  in  the  firm  of  C.,  F.  &  Co.,  over  that  of 
Wadsworth's  capital  in  the  said  2d  firm  of  C.,  W.  &  Co.,  of 
three-fortieths,  and  a  loss  to  Wadsworth  of  three- fortieths, 
which  would  make  a  difference  of  six-fortieths  between  Wads- 
worth  and  Farwell. 

This  simple  illustration  shows  the  utter  absurdity  of  the 
assertion  of  complainant,  that  his  account  in  the  firm  of  C.,  F. 
&  Co.  would  stand  relatively  to  his  partners,  the  same  as  in  the 
firm  of  C.,  W.  &  Co.,  No.  2.  The  value  of  the  services  of 
Cooley  and  Farwell  in  the  firms  of  Cooley,  Wadsworth  & 
Co.,  No.  2,  and  C.,  F.  &  Co.,  relatively  to  each  firm,  the 
complainant  entirely  overlooks.  In  the  said  firm  of  C..  W.  & 
Co.,  No.  2,  Cooley  put  in  as  capital,  in  fact,  half  of  the  money 
and  half  of  the  service  capital,  to  wit,  $50,000  money  and  $30,- 
000  for  services,  making  half  of  cash  and  service  capital,  and 
received  half  of  the  profits.  Wadsworth  put  in  cash,  (but  no 
service  capital)  of  $40,000,  and  received  one-fourth  of  the 
profits.  Farwell  put  in  cash,  $10,000,  and  services  $30,000, 
making  $40,000,  which  made  him  equal,  in  capital,  to  Wads- 
worth,  and  he  received  one-fourth  of  the  profits.  In  the  firm 
of  C.,  F.  &  Co.,  Cooley  put  in  cash  capital,  $100,000,  and  ser- 
vice capital,  $60,000,  making  his  capital,  in  fact,  $160,000,  and 
he  was  to  receive  one-half  of  the  profits.  Wadsworth  was  to 
put  in  as  capital,  $80,000  in  money,tbut  no  service,  and  was  to 
receive  one-fourth  of  the  profits.  Farwell  put  in  cash  capital 
more  than  $20,000,  and  service  capital  $60,000,  making  more 
than  $80,000,  the  same  being  more  than  equal  to  Wadsworth's 
agreed  capital,  and  he  received  one-fourth  of  the  profits,  the 
same  as  Wadsworth.  In  cash  and  service  cap.ital,  Cooley,  in 
both  firms,  was  intended  to  be  just  equal  to  Wadsworth  and 
Farwell,  and  he  received  one-half  of  the  profits  and  they  the 
other  half,  or  one -fourth  each.  In  cash  and  service  capital, 
Farwell,  in  both  firms,  was  intended  to  be  just  equal  to  Wads- 
worth's  capital,  and  he,  therefore,  received  the  same  ratio  of 
profits  with  him.  But,  in  the  firm  of  C.,  F.  &  Co.,  Farwell 
gets  in  behalf  of  the  firm  for  his  services,  from  Wads- 
worth,  the  use  oi  $60,000  of  capital,  instead  of  only  $30,000, 


103 

which  he  received  for  the  use  of  the  firm  for  his  services  to  the 
firm  of  0.,  W.  &  Co. 

5th.  We  have  also  shown,  in  answer  to  the  last  aforesaid 
allegation  of  complainant,  that  Wadsworth  knew  of  the  charge 
of  interest  upon  deficiency  of  capital  stock  in  the  firm  of  C., 
F.  &  Co.,  and  that  the  same  with  the  said  division  of  the  said 
merchandise  between  the  partners  in  the  ratio  of  profits  were, 
at  the  time  of  the  making  of  said  agreement  of  the  21st  of 
January,  1863,  taken  into  consideration  by  the  partners,  and 
formed  a  part  of  the  basis  of  that  agreement  and  settlement. 
For  the  evidence  of  this,  see  ante  pages  from  39  to  50,  and  from 
78  to  89,  inclusive. 

In  this  connection,  we  desire  to  call  especial  attention  again 
to  the  allegation  of  complainant,  on  pages  21  and  23  of  his 
bill,  wherein  he  states,  in  substance,  "  that  at  the  time  of  the 
formation  of  the  firm  of  C.,  F.  &  Co.,  Farwell,  in  violation  of 
his  (copartnership)  agreement,  opened  new  books  for  that  firm 
and  transferred  the  available  assets  of  the  former  firm  to  the 
said  new  firm,  including  the  said  merchandise,  and  divided 
the  said  merchandise,  half  to  Cooley  and  one-fourth  to  Wads- 
worth  and  Farwell  each, — that  is,  he  divided  said  merchan- 
dise in  the  ratio  of  profits,  and  then  credited  the  said  respective 
shares  to  the  capital  stock  of  each  partner  in  the  firm  of  C., 
F.  &  Co." 

By  this  allegation,  complainant  states  that  the  said  division 
of  said  merchandise  and  the  credit  of  the  same  to  the  capital 
of  said  firm  of  C.,  F.  &  Co.,  was  done  at  the  time  when  said 
new  books  of  the  said  new  firm  of  C.,  F.  &  Co.  were  opened, 
to  wit :  on  the  1st  day  of  February,,  1857,  and  so  they  were 
divided  at  that  time  ;  yet  he,  in  other  parts  of  his  bill,  denies 
all  knowledge  of  it.  But  his  acknowledgment  of  this  knowl- 
edge and  agreement  of  this  division  of  said  merchandise,  and 
that  of  the  charge  of  interest  on  deficit  of  capital,  in  one  part 
of  his  bill  of  complaint,  and  then  his  denial  of  all  knowledge 
of  these  facts  in  other  parts,  are  settled  by  the  evidence  which 
he  introduces  through  Mr.  Spink,  in  said  Exhibit  A,  on  page 
44,  of  ev.  By  this  Exhibit  and  the  evidence  of  Mr.  Leiter, 
hereinbefore  referred  to,  the  division  of  the  said  merchandise 
between  the  partners  in  the  ratio  of  profits,  and  the  credit  of 
the  same  in  that  ratio  to  their  several  stock  accounts,  and  the 


104 

charge   of  interest  on  deficiency  of  capital,  on  the  basis   of 
$80,000  to  Wadsworth,  is  fully  proved  and  established. 
FIFTEENTH  ALLEGATION. 

On  page  26  of  bill  complainant  states,  "  that  his  said  part- 
ners, by  means  of  the  erroneous  entries  in  saidfirni's  ( C.,  F. 
&  Co.)  books,  and  by  representing  said  books  to  be  correct,  in- 
duced your  orator  to  enter  into  the  aforesaid  agreement  of 
January  21st,  A.  D.  1862,  and  that  he,  in  fact,  signed  said 
agreement  under  an  erroneous  impression  of  his  rights  in  the 
premises,  induced  by  the  aforesaid  condition  of  saidjirni's 
books,  and  by  the  representation  of  his  said  partners,  and  he 
does  and  will  insist  that  for  the  condition  of  said  books  and 
for  tJie  consequent  error  into  which  he  fell,  his  said  partners 
are  wholly  responsible,  and  that  said  agreement,  last  named, 
is  a  fraud  iipon  your  orator,  and  is  wholly  void." 

To  this  language,  I  desire  to  call  the  especial  attention  of 
tlie  Court.  Complainant  states  that  he  fell  into  error  at  the 
time  he  made  said  agreement  of  the  21st  of  January,  1862, 
and  in  this  wise  :  1st,  By  reason  of  "  the  erroneous  entries  in 
said  firm's  books,"  and  2d,  by  his  partners,  "  representing  said 
books  to  be  correct,"  and  that  thereby  "  induced  your  orator 
(complainant)  to  enter  the  aforesaid  agreement  of  January 
21st,  A.  D.  1862."  And  then,  to  convince  the  Court  that  he, 
(complainant)  at  the  time  he  made  said  agreement,  examined 
the  books  of  said  firm  for  himself,  he  adds,  by  insisting  "  that 
for  the  condition  of  said  books  and  for  the  consequent  error 
into  which  he  fell,  his  partners  were  responsible." 

From  this  language,  can  this  Court  come  to  any  other  con- 
clusion, than  that  the  complainant,  at  and  before  the  time  he 
made  said  agreement,  examined  for  himself  the  said  books  of  ac- 
count ?  Could  he  have  made  it  more  certain,  that  he  did  ex- 
amine them,  and  that  the  entries  therein  agreed  with  the  state- 
ments of  Cooley  and  Farwell  ?  The  language  used  by  him  is 
direct,  clear  and  certain.  TbejreJ^uio  ambiguity  about  it. 

What  is  more  certain,  therfTthat  ne  examined  said  books, 
and  the  entries  therein,  and  that  the  same  agreed  with  the 
statements  of  Cooley  &  Farwell  at  that  time  ?  What  is  ren- 
dered more  certain  than  that  he  made  said  agreement  of  the 
21st  of  January,  1862,  upon  his  own  examination  of  the  said 
books  ?  Mark.  Complainant  does  not  say  that  he  relied  up- 
on, the,  statements  of  Cooky  &  Farwdl  as  to  ic/tat  was  in,  the. 


105 

books,  but  that  he  examined  the  books  to  see  if  the  entries 
therein  agreed  with  or  supported  their  statements,  and  that  he 
found  that  they  did.  He  docs  not  state  that  he  had  no  access 
to  the  books,  and  that  lie  depended  alone  on  the  statements 
made  to  him,  but  he  insists  that  they,  (the  books),  were  before 
him,  and  that  he  examined  them  to  see  if  they  supported  said 
statements,  and  he  found  they  did.  He  says  lie  made  a  "  mis- 
take;" in  consequence  of  what?  Why,  because  the  books  and 
the  said  statements  of  his  partners  agreed.  Has  he  intro- 
duced any  evidence  to  prove  that  he  made  a  mistake  in  his  ac- 
count? No  ;  for  he  admits  that  they  agreed,  and  the  evidence 
proves  that  they  did.  But  he  says,  he  (complainant)  made  a 
mistake.  How,  and  in  what?  Why,  he  says  his  account  was 
represented  largely  over-drawn  as  compared  with  his  partners', 
and  the  books  showed  it  to  be  so,  and  he  supposed  from  an  ex- 
amination of  them  that  it  was,  but  in  this  he,  (complainant), 
was  mistaken.  Mr.  Dunham  testifies  to  the  only  mistake  the 
complainant  made ;  and  that  was,  that  at  the  time  he  made 
said  agreement,  the  prospect  for  butiuess  was  very  doubtful, 
and  that  he  and  his  partners  wanted  to  go  out  of  business,  and 
that  he  did  go  out,  and  that  he  made  a  "mistake"  in  going  out. 
This  is  the  only  mistake  under  the  evidence.  See  evidence, 
page  620,  Ints.  7,  8  and  9.  As  we  have  before  seen,  the  books 
and  the  said  "Exhibit  A,"  of  Mr.  Spink's,  on  page  44  of  ev., 
showed  the  division  of  the  merchandise  in  the  ratio  of  profits, 
and  the  charge  of  interest  upon  deficit  of  capital,  and  the  said 
two  building  accounts,  and  if  they  were  errors,  why  did  he 
not  say  so,  and  insist  upon  it  at  the  time,  instead  of  putting 
said  "  Exhibit  A"  into  his  pocket-book,  and,  keeping  it  there 
for  eighteen  months,  until  he  had  reaped  all  the  benefits  of  said 
agreement,  and  then  bring  it  forth  from  his  pocket  and  declare 
that  he  never  knew  anything  about  it ;  and  then  puts  it  into 
the  evidence  by  his  own  witness.  Like  the  Ostrich,  he  seeks 
to  hide  his  duplicity  by  putting  his  head  under  the  sand,  while 
his  whole  body  is  left  out  to  mark  his  position.  Did  any  one 
ever  encounter  such  gross  inconsistency  ? 

SIXTEENTH    ALLEGATION. 

On  page  20  complainant  alleges,  in  the  face  of  the  preceding 
allegation,  "that  as  soon  as  he  discovered  the  aforesaid  errors 
"in  the  firm's  book^  to  wit,  011  o;1 -about  the  24th  day  of 


106 

"  March,  1863,  he  repudiated  the  aforesaid  agreement  of  Janu- 
"ary  21st,  A.  D.  1862." 

This  is  certainly  strange  language, — and  a  strange  charge 
when  compared  and  considered  in  connection  with  the  allega- 
tion last  above  quoted.  And  it  also  appears  very  strange  when 
compared  with  the  said  llth  noted  allegation  on  page  20th  of 
bill,  (see  ante,  page  89,)  wherein  complainant  states,  "  that  on 
"  or  about  the  28th  of  January,  1863,  he  received  a  note  of 
"  that  date  signed  by  his  said  partners,  Cooley  and  Farwell" 
relative  to  dividing  said  remaining  assets  after  the  payment  of 
the  debts  under  said  agreement ;  and  "  that  immediately  ripon 
"  the  receipt  of  said  note,  your  orator  had  an  interview  with 
"  his  said  partners  *  *  (page  21.)  Your  orator  promptly 
"  declined  the  aforesaid  proposal  to  divide  the  remaining  as- 
"  sets,  *  and  for  the  first  time  to  examine  said  copartnership 
"  books,  and  the  several  private  accounts  of  the  partners" 

Here  then  we  have  three  statements,  made  by  him  in  his  bill 
of  complaint,  relative  to  the  time  when  he  examined  said  books, 
to  wit :  the  first  is  on  page  26  of  bill,  where  he  says  in  effect 
that  he  examined  the  said  books  and  the  entries  "  before  he 
"  made  the  said  agreement  of  the  list  of  January,  1862." 
The  second  is  on  pages  20  and  21,  last  above  recited,  by 
which  he  says  in  effect  that  he  examined  the  said  books  and 
the  sereral  private  accounts  on  the  28th  of  January,  1863;" 
and  now,  on  page  28  of  bill,  he  states  that  "  when  he  first  dis- 
covered said  error,  to  wit,  on  the  24th  of  March,  1863,  he  re- 
pudiated the  said  agreement."  For  the  evidence  to  prove  the 
said  15th  noted  allegation  untrue,  see  ante,  pages  53  to  57,  in- 
clusive ;  see  also  ante,  pages  78  to  89,  inclusive. 
SEVENTEENTH  ALLEGATION. 

On  page  26  of  complainant's  bill,  he  states  "that  during  the 
"existence  of  the  partnership  aforesaid,  his  partners  dealt 
"  more  or  less  in  real  estate,  and  your  orator  believes  they  used 
"  the  copartnership  funds  for  that  purpose." 

This  allegation  is  without  foundation,  and  wholly  unsup- 
ported by  proof.  The  several  firms  were  frequently  obliged 
to  take  security  upon  real  estate  to  save  a  debt,  and  in  perhaps 
a  few  instances  were  obliged  to  take  real  estate  in  payment  of 
debts  or  lose  the  debt,  and  that  in  this  way  said  firms  became 
possessed  of  their  said  real  estate. 


107 


EIGHTEENTH  ALLEGATION. 

On  page  11th  of  bitt^  complainant  states  "that  no  settle- 
"  mcnt  of  said  copartnership  accounts  hatli  ever  been  made 
"  between  your  orator  and  said  Cooley,  Farwell  and  Field, 
"  and  that  your  orator  hath  frequently  applied  to  them  to  come 
"  to  a  final  settlement  with  respect  thereto." 

If  the  said  agreement  of  the  21st  of  January,  1862  was  not  a 
settlement,  what  was  it  ?  It  is  true  it  was  not  a  settlement 
with  Field,  for  he  was  not  a  party  to  it,  neither  was  he  a  part- 
ner of  either  of  the  firms  above  named.  If  it  was  not  a  settle- 
ment, why  does  complainant  ask  that  the  same  be  set  aside  ? 
Does  not  this  agreement  settle  every  partner's  account  with 
the  firm,  and  then  provide  for  the  payment  of  its  debts,  and 
then  for  the  final  division  of  the  "  remaining  assets  "  of  all  the 
firms  between  the  partners  ?  There  can  be  no  doubt  of  this. 
This  agreement  was  a  full  settlement  after  a  full  accounting 
had,  and  it  cannot  be  set  aside,  except  on  the  ground  of  abso- 
solute  fraud  proved  to  the  satisfaction  of  the  court. 

Complainant  states  in  this,  his  last  allegation,  that  Field  was 
a  partner.  As  we  have  before  shown  there  is  no  evidence 
showing  him  to  have  been  a  partner.  And  what  is  conclusive 
upon  this  point  is  the  fact,  that  neither  the  agreement  forming 
the  partnership,  nor  the  one  dissolving  it,  in  any  manner  or 
form  recognise  him  to  have  been  a  partner;  neither  do  the 
books  of  accounts);  but  these  do  recognize  the  fact  that  he  was 
a  clerk  for  said  firm  of  C.,  F.  &  Co.  Why  does  the  Com- 
plainant assume  that  he  was  ignorant  as  to  who  were  and 
who  were  not  partners  in  the  said  firm  ?  Why  does  he  make 
a  final  settlement  of  all  matters  on  the  21st  of  January,  1802, 
and  reduce  it  to  writing,  and  then  subscribe  to  it,  by  which  he 
cleai-ly  names  the  firms  and  the  partners  in  the  firm  of  Cooley, 
Farwell  &  Co.,  declaring  thereby,  that  neither  Field,  nor 
Simeon  Farwell  were  partners,  and  then  assert  in  his  bill  that 
they  were  partners,  but  he  does  not  know  what  their  share  in 
the  profits  were  ?  The  only  reason  that  I  can  see  for  such 
inconsistent  positions,  is,  that  he  in  and  by  his  said  bill  of  com- 
plaint, desired  to  make  prominent  that  he  knew  but  little 
about  his  said  copartnership  matters,  and  that  his  claim  that  a 
"  fiduciary  relation  "  existed  between  him  and  Cooley  &  Far- 
well,  was  real.  What  the  relation  between  himself  and  Field 


108 

and  Simeon  Farwell  were,  ho  docs  not  attempt  to  inform  ns. 
The  duplicity  manifested  by  the  complainant  in  this  and  in 
other  particulars  in  his  bill,  is  remarkably  striking,  and  leads 
one  irresistibly  to  suspect  his  motives  in  his  professions  of 
injury  sustained. 

NINETEENTH  ALLEGATION. 

On  page  4  of  bill,  complainant  says,  that  in  the  firm  of 
Cooley,  Wads  worth  &  Co.,  "  eacli  partner  was  to  be  allowed 
interest  on  his  capital  when  paid  in."  On  page  5,  he  alleges, 
"  that  by  said  articles  of  copartnership  he  was  exempted  from 
active  duty  in  the  business  of  said  new  firm,  his  credit  and 
influence  were  indispensible  in  the  prosecntion  of  the  biisiness 
and  Avere  far  more  valuable  than  the  active  services  of  the 
aforesaid  active  partners.  After  the  dissolution  of  said  firm, 
to-Avit,  on  the  22d  day  of  May,  1851,  complainant  on  page  6  of 
his  bill  says,  that  he  and  Cooley  &  Farwell,  by  their  instrument 
under  seal  of  that  date,  "  agreed  to  continue  the  aforesaid 
business  for  (or  upon)  the  terms  and  regulations  as  Avere 
therein  named,  with  the  exception  that,  the  agreement  concern- 
ing the  duties  to  be  performed  by  your  orator  and  the  said 
Phelps,  formed  no  part  of  the  aforesaid  agreement  of  the  22d 
of  May,  1851,  as  in  and  by  said  last  named  agreement,  will 
on  reference  appear.''"'  On  page  8  of  bill  he  further  alleges 
that  "  in  all  things  he  performed  the  duties  imposed  on  him  by 
the  said  several  copartnership  articles,  and  that  owing  mainly 
to  his  credit  and  influence  the  said  firms  transacted  a  large 
and  profitable  business." 

By  reference  to  the  original  article  of  agreement  of  the  firm 
of  Cooley,  "VVadsAArorth,  Phelps  &  Co.,  on  page  197  of  printed 
evidence,  it  will  be  seen  that  WadsAvorth  &  Phelps  Avere  not 
required  to  spend  all  their  time  at  the  store  in'the  active  duties 
of  the  business,  but  Avere  to  use  their  influence  in  its  behalf. 
Phelps  Avas  however  to  have  the  general  supervision  of  the 
purchasing  of  goods,  and  the  active  partners  (Cooley  &  Far- 
Avell)  Avei'e  allowed  to  draAV  funds  from  the  concern  to  meet 
.their  current  expenses. 

It  Avill  also  be  seen  by  the  said  agreement  of  Cooley,  Wads- 
Avorth  &  Favwell,  written  on  the  back  of  the  said  copartnership 
agreement  of  Cooley,  WadsAvorth,  Phelps  &  Co.,  that  the  pro- 
vision in  said  original  agreement,  by  Avhich  "Wadsworth  and 
Phelps  were  relieved  from  active  service  in  the  business  of 


109 

tli.it  firm,  was  annulled  by  the  new  partnership  agreement,  and 
thereupon  it  was  as  much  the  duty  of  Wads  worth  to  render 
his  services  to  the  said  new  firm  as  it  was  that  of  Cooley  and 
Farwell.  This  new  agreement  will  be  found  on  pages  198-9 
of  printed  evidence,  and  is  in  words  and  figures  following: 

"  We,  the  undersigned,  hereby  agree,  that  whereas,  the  firm 
of  Cooley,  Wadsworth,  Phelps  &  Co.  was  on  the  14th  inst. 
dissolved  by  mutual  consent,  we  will  continue  the  business  for 
the  term  stipulated  in  their  articles  of  agreement  herewith 
annexed,  under  the  same  terms  and  regulations  as  are  therein 
named,  with  the  exception  that  the  agreement  concerning  the 
duties  to  be  performed  by  E.  S.  Wadsworth  and  Win.  H. 
Phelps  shall  form  no  part  of  this  covenant. 
"Witness  our  hands  and  seals,  this  22d  day  of  May,A.D.,  1851, 

"F.  B.  COOLEY,  ' 

«E.  S.  WADSWORTH, 

«  JNO.  V.  FARWELL." 

By  this  agreement,  it  will  be  noticed,  that  the  several  part- 
ners in  this  new  firm  were  equally  liable  and  obligated  to 
devote  their  services  to  the  business  of  the  firm.  No  time 
capital  was  in  fact  however  contemplated  on  the  part  of  Cooley 
&  Wadsworth,  but  time  capital  was  allowed  to  Farwell.  This 
is  clear  from  the  fact  that  Far  well's  profits  were  greater  than 
his  relative  proportion  of  the  cash  capital ;  while  the  profits  of 
Cooley  &  Wadsworth,  as  between  themselves,  were  equal;  but 
as  between  themselves  and  Farwell,  their  profits  and  cash  capi- 
tal, as  compared  with  his  cash  capital,  were  unequal. 

Now  it  will  be  remembered,  that  the  testimony  of  Miles  and 
Simeon  Farwell  proves  that  Cooley  and  Farwell  faithfully  ren- 
dered their  services  to  the  business  of  the  said  firm  of  Cooley, 
Wadsworth  &  Co.  No.  1,  and  it  as  clearly  proves,  that  Wads- 
worth  did  not  render  his  services  to  its  business,  but  gave  his 
time  and  attention  to  his  private  business. 

It  will  also  be  remembered  that  the  defendants  on  page  3  of 
their  answer,  state  that  complainant,  failing  to  render  his  ser- 
vices to  said  firm's  business,  he,  in  consideration  thereof,  agreed 
that  no  interest  should  be  charged  upon  the  capital  stock  of 
the  partners.  In  the  settlement  of  this  firm's  affairs,  both 
Cooley  and  Wadsworth  carried  this  parole  agreement  into 


110 

effect ;  and  their  several  accounts  were  so  settled  and  entered 
upon  the  books  of  that  firm  at  the  time  of  its  dissolution.  But, 
notwithstanding  this  settlement  in  March,  1854,  the  complain- 
ant, after  ten  years  had  elapsed,  directs  Mr.  Spink,  his  account- 
ant, to  disregard  this  agreement,  and  cast  interest  upon  the 
capital  stock  of  this  firm,  and  in  his  computations  in  chief,  this 
interest  is  included  in  order  to  swell  his  account  and  depre- 
ciate that  of  Farwell's. 

As  a  further  reason  why  no  interest  was  charged  upon  the 
capital  stock  of  said  firm,  at  the  time  of  the  dissolution  of  the 
same  the  assets  of  the  firm  in  notes  and  accounts  were  divided 
between  the  partners,  and  each  assumed  for  himself  the  re- 
sponsibility of  collecting  the  same ;  and  Phelps,  Wadsworth 
and  Cooley,  by  agreement  with  Farwell,  placed  that  labor  upon 
Farwell ;  and,  as  a  consideration  for  this  labor,  (said  Phelps 
paid  Farwell  five  per  cent,  upon  the  amount  he  collected  for 
him,  and  the  said  Wadsworth  and  Cooley  agreed  that  no  in- 
terest should  be  charged  upon  the  capital  stock  of  said  new 
firm.  And,  as  a  further  consideration  for  complainant's  non- 
attendance  upon  the1  business  of  the  firm  and  of  the  collections 
of  his  said  portion  of  said  outstanding  debts,  he  allowed  the 
commissions  of  two  Insurance  Companies  of  which  he  was 
agent,  to  pass  to  the  credit  of  the  firm,  instead  of  to  his  per- 
sonal credit. 

In  order  to  sustain  the  position  we  have  taken,  and  to  make 
the  facts  appear,  we  desire  to  call  the  attention  of  the  Court  to 
the  testimony  of  Mr.  Phelps,  as  well  as  to  the  books  of  account 
of  the  said  two  firms. 

Mr.  Phelps  testifies,  on  pages  442-3,  int.  14,  "that  Mr. 
"Wadsworth  was  agent  for  two  Insurance  Companies  at  Hart- 
"  ford,  Conn.,  the  commissions  of  which,  after  a  few  months, 
"  for  some  reasons,  he  allowed  to  go  to  the  credit  of  the  firm 
"  instead  of  his  own  private  account.  (Int.  15).  And  said 
"commissions  amounted,  I  should  think,  to  $1,500  or  $1,600  a 
"  year." 

On  page  444,  in  answer  to  int.  22,  he  testifies  as  follows  : 
"  I  arranged  with  Mr.  Farwell  to  collect  my  portion  of  the 
"  debts  due  the  firm  of  Wadsworth  &  Phelps,  after  the  forma- 
"  tion  of  the  firm  of  Cooley,  Wadsworth,  Phelps  &  Co.  I  can- 
"  not  state  the  exact  amount  of  the  consideration ;  I  paid  him 
"  a  certain  amount  without  regard  to  per  centage,  but  I  think 


Ill 

'  it  amounted  to  3  or  5  percent.  (Int.  23).  At  this  time  Wads- 
"  worth  and  myself  had  divided  our  claims." 

On  page  445,  in  reply  to  int.  29,  he  testifies,  "  Mr.  Cooley 
"  objected  very  strongly  to  my  leaving  the  concern  (Cooley, 
"  Wadsworth,  Phelps  &  Co.)  Mr.  Farwell  preferred  that  I 
"  should  stay.  There  was  considerable  feeling  about  it  by  Mr. 
"  Cooley,  in  particular,  but  finally,  on  further  consultation  with 
"  Wadsworth,  he  (Cooley)  consented  to  it." 

On  pages  445-6,  he  testifies,  in  reply  to  int'ys  30,  31,  33,  34 
and  35,  "  that  the  partners  that  took  supervision  and  control 
"  of  the  business,  were  Cooley  and  Farwell  at  Chicago,  and  I 
"  to  buy  the  goods  in  New  York.  Wadsworth  employed  his 
"  time,  I  suppose,  in  his  private  business.  It  was  worth  from 
"  three  and  a  half  to  five  per  cent,  to  collect  said  clajms.  The 
"  merchandise  on  hand  at  the  close  of  the  said  firm  of  Wads- 
"  worth  &  Phelps,  was  divided,  one-half  to  Phelps,  one-fourth 
"  to  Wadsworth  and  one-fourth  to  Cooley ;  they  went  into  the 
"  new  firm  of  Cooley,  Wadsworth,  Phelps  &  Co.,  as  capital. 
"  Wads  worth' s  capital,  of  course,  (which  he  put  in,)  was  the 
"  consideration  that  caused  us,  Cooley,  Farwell  and  myself,  to 
"  admit  Wadsworth  into  the  firm,  and  the  capital  was  suffi- 
"cient  for  the  business  of  the  firm." 

On  page  656,  J.  S.  Miles  testifies,  in  answer  to  int'ys  3  and 
4,  "  that  he  was  acquainted  with  said  firms  from  March  1st, 
"  1851,  to  February  1st,  1857.  I  worked  for  them  as  salesman 
"  and  traveling  agent.  The  active  partners,  who  had  the  con- 
"  trol  of  the  business,  were  Cooley  and  Farwell." 

On  page  657,  he  testifies,  in  answer  to  int'ys  5,  7  and  8,  "  that 
"  Wadsworth  did  not  have  a  great  deal  to  do  with  the  custo- 
"  rners.  He  did  not  take  an  active  part  in  the  business.  The 
"  business  was  chiefly  done  and  managed  by  Cooley  and  F:ir- 
"  well.  My  impression  is,  that  he  introduced  very  few  custo- 
"  mers.  I  think  he  sold  very  few  goods,  if  any.  I  do  not  know 
"  of  his  ever  traveling  in  the  country  for  the  purpose  of  collect- 
"  ing  debts.  Mr.  Wadsworth  had  his  office  in  the  house,  I 
"  think,  all  the  time.  I  think  he  did  not  take  an  active  part  in 
"  the  business.  During  that  time  he  did  not  act  in  the  capacity 
"  of  salesman." 

On  page  658,  in  answer  to  int'ys  12  and  13,  ho  testifies,  "  that 
"  Farwell  traveled  iii  the  country  considerably  during  the  fore- 


112 

"  part  of  the  partnership  ;  and  he  introduced  a  nnmber'of  cus- 
"  tomers,  and  made  considerable  effort  in  that  direction." 

On  page  663,  in  reply  to  cross-int.  22  and  23,  put  by  Mr. 
Woodbridge,  he  testifies,  "  that  Mr.  Wads  worth,  during  the 
"  time  was  not  in  any  active  business.  My  impression,  as  to 
"  his  reputation  for  wealth  was,  at  the  commencement,  that  he 
"  was  wealthy." 

I  think  toward  the  latter  part  of  it  he  became  somewhat 
embarrassed.  On  page  669,  in  answer  to  int'y  23,  26,  27,  28 
and  36,  he  testifies,  "  that  at  the  time  witness  was  first  ein- 
"  ployed  by  the  firm,  in  1850  or  1851,  Mr.  Phelps  was  the 
"  principal  manager  of  the  business.  The  active  partners  were 
"  Cooley,  Farwell  and  Phelps.  Mr.  Wadsworth  had  consider- 
"  able  out  side  business.  I  don't  know  what  it  was.  I  don't 
"  think  he  Spent  much  of  his  time  on  the  business  of  the  firm. 
"  Cooley  and  Farwell  traveled  some  and  they  probably  made 
"  most  of  the  new  customers.  I  think  they  all  passed  through 
"  the  hands  of  Mr.  Farwell  in  ol'taining  credit."  On  page  670, 
in  answer  to  int'y  34,  he  testifies,  that  "  during  the  existence 
"  of  the  firms  of  Cooley ',  Wadsworth  &  Co.,  Wos.  1  and  2, 
"  Mr.  Farwell  loas  the  most  influential  among  their  customers. 
"Mr.  Wadsworth  had  the  reputation  of  being  a  cautious  and 
"  shrewd  business  man. 

From  this  testimony  it  is  seen  that  the  statement  of  Cooley 
and  Farwell  in  their  answer,  to-wit,  that  no  interest  was  to  be 
charged  on  the  capital  stock  of  the  partners  in  the  first  firm  of 
Cooley,  Wadsworth  &  Co.,  stands  supported,  and  that  the 
direction  given  to  the  witness,  Spink,  by  Wadsworth  and  his 
attorney,  to  cast  interest  on  the  capital  stock  of  each  partner 
in  this  firm,  was  wrong,  and  is  a  fraud  upon  Cooley  and  Far- 
well.  By  reference  to  the  cross-examination  of  Mr.  Spink,  on 
page  203,  iut'y  136,  it  will  be  seen  what  the  amount  of  interest 
on  such  capital  would  be,  and  its  effects  upon  the  several  part- 
ners. His  answer  is  as  follows :  "  I  did  compute  (in  my  com- 
"  putations  in  chief)  interest  on  the  capital  of  the  first  firm, 
"  crediting  Cooley  for  the  same  $2,880.00 

"  and  charging  him  back  with  seven-sixteenths  of  the 

"  whole  interest,  credited  to  the  several  partners,      2,598.75 
"  thus  increasing  his  credit  balance  281.25 

"  the  same  as  to  Wadsworth. 
"I  credited  FarwcH -interest-  en  -his- capital  •  -        -  '       1SO-.0& 


113 

"  and  charged  him  one-eighth  of  the  whole  interest 

"  credited  to  the  several  partners  742.50 

"  thus  decreasing  his  credit  balance  -     562.50 

"  The  effect  being,  to  make  Farwell  pay  $281.25  interest  to 
"  Cooley  &  Wadsworth  each." 

In  this  little  matter  of  interest  the  complainant  has  caused 
his  witness  to  wrongfully  incorporate  into  his  computations  in 
chief  against  Farwell  the  sum  of  $562.50,  when  at  the  same 
time  he  knew  that  this  matter  had  been  fully  settled  more  than 
ten  years  ago.  Will  this  Court  go  behind  this  settlement  of 
this  matter,  and  cast  the  evidence  of  this  settlement  contained 
in  the  books  of  account  and  the  corroborating  testimony  above 
quoted  aside,  and  thereby  say  that  the  partners  in  that  firm 
made  no  change  in  their  said  original  agreement  in  regard  to 
interest  upon  the  capital  stock  paid  into  that  firm,  and  at  this 
late  day  re-open  said  books  and  said  settlement  for  an  adjust- 
ment in  that  regard,  upon  the  basis  of  the  said  original  articles 
of  copartnership  ?  From  the  articles  of  copartnership  forming 
the  first  firm  of  C.,  W.  &  Co.,  Mr.  Wadsworth  was  under  as 
much  obligation  to  render  to  the  business  of  that  firm  his  ser- 
vices, as  either  Cooley  or  Farwell.  And,  from  the  evidence,  it 
is  certain  that  he  did  not  render  his  services,  while  they  did. 
And  there  ought  to  be,  and  there  was,  a  consideration  rendered 
by  both  Cooley  &  Wadsworth,  to  Farwell,  for  his  services  in 
collecting  their  old  debts,  in  which  Farwell  had  no  interest 
whatever ;  and  Wadsworth,  in  fact,  at  the  time,  rendered  to 
Farwell  most  cheerfully  the  said  considerations  for  his  non- 
attendance  upon  the  business  of  the  firm  as  above  specified,  but 
now  seeks  to  get  it  all  back.  Mr.  Cooley  abides  by  his  agree- 
ment,— why  should  not  Mr.  Wadsworth  respect  his  ? 

In  this  connection  it  will  be  also  remembered,  that  by  the 
terms  of  the  said  original  copartnership  agreement  last  referred 
to,  "  Cooley  and  Farwell,  the  active  partners,  alone  were  per- 
"  mitted  to  draw  funds  from  the  said  copartnership  to  meet 
"  their  current  expenses,  and  that  the  profits  over  and  above 
"  (such  drafts)  were  to  remain  in  the  business  until  the  same 
"  was  closed."  By  this  clause  of  said  agreement  it  is  plain 
that  Cooley  and  Farwell  were  entitled  to  draw  from  the  funds 
of  this  firm  from  year  to  year  of  its  existence,  free  of  the  charge 
of  interest,  a  sufficient  amount  for  their  current  expenses,  and 
that  Mr.  Wadsworth  had  not  this  right.  By  reference  to 


114 

Exhibit  No.  4  to  Spink's  deposition,  on  pages  150,  151  and  152, 
it  will  be  seen  that  the  partners  in  this  firm  drew,  respectively, 
as  follows :  Mr.  Cooley,  the  sum  of  $3,496  ;  Mr.  Wadsworth, 
the  sum  of  $2,140.53,  Mr.  Farwell,t,$2,063.7l.  Now  Mr.  Wads- 
worth  had  no  right  to  draw  this  sum  of  money  from  that  firm, 
and  not  having  the  right  so  to  do,  it  is  clear  that  he  should  be 
charged  with  interest  upon  the  same  in  the  settlement,  provid- 
ing there  was  no  agreement  made  by  which  the  rights  of  the 
said  partners,  under  their  said  original  agreement,  were  taken 
out  of  said  original  agreement.  We  certainly  do  not  find  any 
evidence  upon  this  matter,  except  that  furnished  by  the  books 
of  account ;  and  by  them  it  is  proved  that  interest  was  charged 
to  Cooley  and  Farwell,  as  well  as  to  Mr.  Wadsworth,  upon  their 
said  respective  drafts  upon  the  funds  of  this  firm.  In  this  case, 
Mr.  Wadsworth  and  his  solicitor  instructs  Mr.  Spink  to  aban- 
don the  said  original  agreement  in  this  matter  of  interest,  and 
to  follow  the  entries  in  the  books  of  account  of  that  firm  as  the 
evidence  of  their  agreement  to  depart,  in  this  particular,  from 
the  said  original  articles  of  copartnership,  and  in  his  computa- 
tions to  charge,  as  to  said  books  of  account,  interest  to  Cooley 
and  Farwell,  as  well  as  to  W  adsworth,  upon  their  said  several 
drafts.  We  do  not  mention  this  to  condemn  the  act,  or  to 
exclude  this  interest  from  the  said  several  accounts  of  Cooley 
and  Farwell,  but  simply  to  call  the  attention  of  the  Court  to 
the  fact,  that  Mr.  Wadsworth  appropriates  all  the  entries  in 
the  said  books  of  account  of  all  the  aforesaid  firms  as  evidence 
of  the  agreement  of  the  partners  to  depart  from  their  original 
articles  of  copartnership,  when  such  entries  are  in  his  favor, 
but  when  they  seem  to  be  against  him  (and  without  informing 
the  Court  of  the  real  considerations  that  in  fact  caused  the 
alteration),  he  asks  the  Court  to  discard  such  entries  as  evi- 
dence of  any  new  agreement  between  them.  If  the  entries  are 
to  be  rejected  as  evidence  of  a  change  of  agreement  in  any  one 
or  more  instances,  they  must  in  all  cases,  unless  otherwise 
explained. 

How  is  this  court  to  discriminate  what  entries  are  to  be,  and 
what  are  not  to  be  taken  as  evidence  of  such  change  of  agree- 
ments ?  If  the  rule  that  the  entries  in  the  books  are  evidence 
of  changes,  as  we  shall  hereinafter  show  by  good  authority, 
what  rule  can  the  court  adopt  that  Avill  fail  to  trample  upon  the 
rights  of  the  parties  thereto,  if  it  should  attempt  to  discrimi- 


116 

nate  between  such  entries,  and  to  say  which  were  and  which 
were  not  proper  evidence  Tbf  such  changes  ?  Such  an 
attempt  -would  involve  the  court  in  -not  only  great  per- 
plexity, but  subject  it  to  the  absurdity  of  not  only  annulling 
but  of  making  contracts  for  the  parties.  It  is  the  prerogative 
of  a  court  to  inquire  and  settle  as  to  what  the  parties  have 
agreed,  under  the  evidence ;  but  not  to  make  new  contracts, 
or  to  annul  old  ones,  except  on  the  ground  of  fraud,  clearly 
proven  by  him  who  alleges  it. 

It  will  be  remembered  that  the  entries  in  the  books  of  this 
first  firm  prove  that  the  original  articles  of  copartnership  were 
changed  in  another  particular,  as  we  have  above  said,  and  in 
this,  that  no  interest  should  be  cast  upon  the  capital  stock  of 
said  firm ;  and  Mr.  Wadsworth  asks  this  court  to  disregard 
these  entries  as  evidence  of  such  a  change,  and  at  the  same 
time  to  take  said  entries  where  interest  is  charged  to  the  several 
private  accounts  of  Cooley  and  Farwell,  as  evidence  of  such 
change.  What  consistency  !  And  how  is  the  court  to  deter- 
mine which  entry  is  to  be  regarded  and  which  is  not,  if  it  as- 
sumes that  one  may  be  ? 

The  extraordinary  efforts  of  complainant  and  his  counsel  to 
swell  the  private  accounts  of  Mr.  Farwell  in  the  said  several 
firms,  in  order  to  make  it  appear,  if  possible,  that  complainant's 
private  and  stock  accounts  stand  relatively  as  well  as  Far- 
well's,  is  worthy  of  particular  notice. 

The  first  effort  is  found  in  the  matter  last  above  discussed, 
by  which  we  have  shown  that  complainant  directed  Mr.  Spink, 
in  his  examinations  in  chief,  to  erroneously  include  in  his  com- 
putations, and  charge  to  the  private  account  of  Farwell,  the 
sum  of  $562.50.  The  second  effort  was  in  regard  to  the  said 
private  loan  of  Cooley,  Wadsworth  &  Co.,  No,  2,  of  $5,000,  to 
Farwell,  and  the  interest  thereon,  amounting  in  the  aggregate 
to  $8,878.22.  (See  ev.,  pages  204,  141.) 

The  circumstances  of  this  loan  were  as  follows  :  When  C., 
W.  &  Co.,  No.  1,  dissolved,  it  had  a  large  amount  of  assets  in 
notes  and  accounts  that  needed  particular  attention  ;  and  when 
the  second  firm  of  C.,  W.  &  Co.  was  formed,  Mr.  Farwell  hav- 
ing but  a  slight  interest  in  them,  it  was  more  for  his  interest  to 
devote  his  undivided  attention  to  the  business  of  the  new  firm. 
To  induce  him  to  devote  extra  and  all  possible  attention  to  the 
collection  and  securing  of  the  said  old  assets  in  notes  and  ac- 


counts,  in  connection  with  ";he  business  of  the  new  firm,  the 
new  firm  loaned  to  Far  well  the  sum  of  $5,000,  at  6  per  cent, 
interest,  until  such  time  as  such  collections,  or  the  most  of 
them,  were  made.  Under  this  agreement,  Mr.  Farwell  re- 
ceived this  money,  and  took  upon  himself  said  extra  responsi- 
bility and  labor  in  the  care  and  collection  of  said  old  assets. 
From  that  time  to  the  21st  of  January,  1862,  Mr.  Farwell  be. 
stowed  care  and  labor  upon  the  collection  of  said  old  assets 
without  being  called  upon  by  either  Cooley  or  Wadsworth  to 
pay  said  loan.  But  Mr.  Farwell,  having  no  need  of  this  loan, 
paid  the  same  with  interest  before  his  labors  were  finished  in 
the  collection  of  said  old  assets.  And  notwithstanding  these 
facts,  complainant  feigns  ignorance  of  this  transaction,  and 
comes  into  this  court  of  equity  and  asks  that  even  this  transac- 
tion should  be  set  aside,  and  allow  him,  as  he  has  instructed 
Mr.  Spink,  to  charge  this  loan  of  $5,000  and  its  interest  to  the 
private  account  of  Farwell,  as  money  drawn  by  him  in  viola- 
tion of  their  partnership  agreement,  and  Mr.  Spink  so  includes  it. 

Mr.  Spink  testifies  on  pages  204-5,  cross  141-2,  that,  "the 
"  loan  of  $5,000  to  Farwell,  and  the  interest  to  February  1 
"  1862,  were  included  in  the  sum  of  $11,037.79,  but  should  not 
"  have  been,  because  it  was  a  special  loan,  not  to  be  refunded 
by  him  until  certain  contingencies  had  arisen." 

The  third  effort  was  in  directing  Mr.  Spink,  in  his  computa 
tions  in  chief,  to  erroneously  charge  the  Wabash  Avenue  build- 
ing account  of  $7,043.06  (which  was  to  his  knowledge  paid  by 
Cooley  with  interest)  to  the  private  account  of  Farwell,  when 
he  knew  that  Farwell  had  nothing  to  do  with  the  same.  (See 
ev.,  page  692,  I.  10.) 

By  adding  these  three  items  together,  which  Mr.  Spink  erro- 
neously, in  his  computations  in  chief,  charged  to  Mr.  Farwell, 
we  find  that  they  amount  to  $17,383.79. 

And  then,  in  order  to  reduce  his  own  deficit  of  capital  and 
over  drafts  in  the  firm  of  Cooley,  Farwell  &  Co.,  complainant 
directs  Mr.  Spink,  in  his  computations  in  chief,  to  erroneously 
credit  him,  1st,  with  the  interest  on  his  capital  in  the  said  firm 
of  Cooley  &  Wadsworth,  No.  1. 

2d,  to  credit  him  with  half  of  the  said  loan  of  $5,000  to  Far- 
well,  with  the  interest  thereon. 

3d,  to  omit  interest  on  his  deficit  of  capital  in  the  firm  of 
C.,  F.  &  Co. 


11? 

4th,  to  divide  all  the  merchandise  on  hand  at  the  close  of 
each  firm  between  the  partners  in  the  ratio  of  capital,  and  to 
treat  the  same  as  so  much  actual  cash. 

5th,  to  apply  half  the  profits  of  the  firm  of  C.  N.  Henderson 
&  Co.,  to  himself  and  Cooley,  and  to  wholly  deprive  Farwell 
of  any  portion  of  the  same,  notwithstanding  Farwell  was  a 
partner  therein,  and  as  one  of  the  firm  of  Cooley,  Wadsworth 
&  Co.,  he  furnished  a  part  of  the  capital  of  said  firm. 

6th.  To  omit  the  charge  of  $2,500  and  interest  on  his  own 
account,  which  he  had  received  from  the  firm  previous  to  the 
21st  of  January,  1862,  to  pay  his  own  note  with,  but  which 
amount  was  not  charged  up  until  the  24th  of  January,  1862, 
but  was  entered  in  the  cash  book  as  an  item  advanced  to  com- 
plainant. 

Mr.  Spink,  when  asked  to  explain  this  matter,  says  :  "  The 
"  charge  of  $2,538.47  is  made  to  the  private  account  (of  com- 
"plainant)  as  cash  on  the  24th  of  January,  1862  ;  taking  the 
" '  Exhibit  A '  in  connection  with  the  same,  it  seemed  to  me  at 
"  the  time  of  my  examination  on  the  subject  of  this  Exhibit, 
"  and  it  still  seems  to  me,  that  the  charge  is  for  a  sum  of  $2,500, 
"  which  had  been  paid  out  by  the  firm  for  Wadsworth  some 
"  time  previously,  which  amount  had  been  carried  among  the 
"  cash  items,  and  interest  on  the  sum  named."  (See  ev.,  page 
89,  cross  65.) 

7th.  To  divide  the  said  goods,  sold  to  Cooley  and  Farwell 
on  the  21st  of  January,  1862,  between  the  partners  in  the  ratio 
of  capital,  and  to  treat  the  same,  though  unconverted,  as  so 
much  cash,  and  to  apply  the  same,  even  before  the  debts  were 
paid,  toward  refunding  of  the  capital  paid  into  the  firm  of  C., 
F.  &  Co.,  in  the  ratio  of  capital  stock  paid  in  by  each  on  his 
assumed  basis. 

In  the  division  of  such  merchandise  he  however  fails  to 
furnish  to  the  Court  the  agreements  of  the  partners,  or  his  rule 
of  dividing  the  merchandise  in  the  absence  of  an  agreement, 
but  asks  the  Court  to  assume  that  the  invoice  price  was  their 
cash  value.  Or,  in  other  words,  he  tears  the  said  agreement 
in  twain,  and  adopts  one  part  of  it,  and  repudiates  the  other 
part  of  it.  Should  the  Court  act  upon  his  hypothesis  in  this 
matter,  and  assume  that  that  was  the  cash  value  of  the  goods, 
how,  then,  is  it  to  divide  the  goods  by  items  and  decide  between 
the  comparative  values  of  each  item  ?  And  then,  again,  if  it 


Us 

wei'e  possible  for  the  Court  to  succeed  in  this,  how  is  it  to  get 
the  goods  back  again  (in  the  absence  of  an  agreement)  into  the 
succeeding  firm  as  so  much  capital  stock  credited  to  each  part- 
ner ?  When  you  ignore  the  agreements  of  the  said  partners, 
in  all  or  any  one  particular,  as  said  agreements  are  shown  by 
the  books  of  account,  and  the  private  and  stock  account  of 
each  partner,  and  the  said  agreement  of  the  21st  of  January, 
1862,  you  are  without  sail  or  rudder  upon  an  ocean  without  a 
shore,  and  upon  a  ship  without  a  compass  to  guide  to  a  haven 
of  equity,  as  between  the  partners. 

The  charges  and  claims  of  the  complainant  are  without 
foundation  or  reason,  and,  therefore,  they  are  absurd,  and  the 
evidence  most  clearly  proves  that  complainant's  bill  is  utterly 
without  equity. 

Having  reviewed  the  said  bill  under  the  evidence,  we  are 
now  prepared  to  look  into  the  main  questions  of  the  case  under 
the  law  and  the  evidence  ;  and  in  order  to  be  more  perfectly 
understood,  we  will  divide  oiir  discussion  into  parts  by  distinct 
numerals,  to  wit : 

FIKST  POINT. 

To  set  aside  the  said  agreement,  made  on  the  21st  day  of 
January,  1862,  there  must  be  a  sufficient  charge  of  fraud  against 
the  parties  thereto,  and  such  a  charge  the  complainant  has  not 
made.  It  is  evident,  from  the  bill  of  complaint,  that  an  at- 
tempt was  made  on  the  part  of  the  pleader  to  make  it  appear, 
first,  that  he  did  not  intend  to  make  a  direct,  positive  charge 
of  fraud,  or  at  least  such  a  charge  as  to  predicate  his  bill 
wholly  upon  fraud ;  and,  second,  he  intended,  after  all,  to  so 
charge  deception  and  fraud  upon  Cooley  and  Farwell  as  would 
set  aside  the  said  settlement  of  the  partners,  by  the  said  agree- 
ment. The  rule,  as  laid  down  and  settled,  both  in  this  coun- 
try and  England,  in  the  cases  of  Mt.  Vernon  Bank  vs.  Stone, 
2  R.  I.  Reports  129,  and  Glasscott  vs.  Lang,  22d  Enych  R. 
310,  is  as  follows  : 

"  When  a  bill  upon  its  merits  is  stripped  of  fraud,  and  there 
"  is  not  substantive  matter  enough  in  the  bill  to  maintain  it 
"  without  the  charge  of  fraud,  and  the  proof  fails  to  make  the 
"  said  charge  of  fraud  good,  the  bill  must  be  dismissed." 

That  is,  where  the  substantive  charge  in  the  bill  is  fraud, 
that  must  be  proved  or  the  bill  will  fail  altogether.  We  will 
examine  the  bill  and  see  what  the  substantive  charges  are. 


119 

On  page  14,  complainant  states,  "  that  Cooley  and  Farwell, 
in  the  spring  of  1859,  with  the  idea  of  expelling  him  from  the 
firm  of  C.,  F.  &  Co.,  stated  to  him  that  his  account  was  largely 
overdrawn,  and  that  he  had  violated  the  terms  of  said  copart- 
nership and  forfeited  his  rights  thereunder,  and  that  as  a  con- 
dition of  his  remaining  in  said  firm  he  must  repay  the  firm  of 
C.,  W.  &  Co.  some  $19,000  and  take  [upon  himself  the  labor 
and  responsibility  of  re-imbursing  himself  out  of  the  Hender- 
son assets,  and  that  he  had  no  personal  acquaintance  with  the 
books  of  Cooley,  Farwell  &  Co.,  or  of  the  personal  accounts  of 
his  partners,  (mark,  he  don't  say  he  had  no  personal  knowl- 
edge of  his  own  personal  account !)  and  he  made  no  personal 
examination,  (page  15)  and  accepted  and  relied  upon  Farwell's 
statement,  and  he  agreed  to  assume  the  said  Henderson's  ac- 
count and  pay  said  advances ;  that  he  paid  $6,000,  and  the 
remaining  $13,000  was  charged  to  his  private  account,  and  that 
said  statements  of  C.  and  F.  were  not  true,  and  that  his  ac- 
count was,  relatively,  as  good  as  his  partners,  and  better  than 
Farwell's,  and  that  he  never  discovered  his  mistake  until  he 
caused  the  books  to  be  examined,  and  that  thereby  he  has  sus- 
tained a  loss  of  more  than  $6,000,  and  he  insists  that  this  trans- 
action should  be  declared  wholly  void  and  he  admitted  to  his 
original  rights." 

On  page  17  he  alleges  that  on  the  21st  day  of  January,  1862, 
"  C.  <fc  F.  stated  that  his  account  was  very  largely  over- 
"  drawn  on  the  books,  and  that  in  consideration  of  his  over- 
"  drafts,  he  made  the  said  agreement  on  the  21st  of  January, 
"  1862."  On  page  16  he  says,  "  he  was  ignorant  of  the  books 
"  and  of  the  private  accounts  of  the  partners,  and  that  he  did 
"  not  examine  them,  and  that  he  relied  on  their  statements,  and 
"  they  were  untrue,  but  he  never  discovered  his  mistake  until 
"  he  caused  the  books  to  be  examined."  On  page  18,  he  says, 
"  that  the  books,  at  the  time  of  making  said  agreement,  were 
"  kept  in  such  a  way  as  to  give  color  to  said  misrepresentations. 
[He  did,  it  appears,  after  all,  examine  the  books  at  that  time.] 
On  page  20,  he  says,  "that  on  the  28th  of  January,  1863,  he 
"  received  notice  from  C.  &  F.  that  the  debts  were  paid,  and 
"  they  were  ready  to  divide  the  "remaining  assets,"  under  said 
"  agreement, — that  he  then  had  an  interview  with  them  and 
"  found  that  said  assets  had  not  been  converted  into  money, 
"  and  therefore  were  in  no  condition  to  divide ;  and  that  then, 


120 

"  for  the  first  time,  (page  21),  he  examined  said  books,  and 
"  speedily  discovered  a  multitude  of  errors  to  his  prejudice." 
On  page  23  he  alleges  that  "  on  the  formation  of  the  firm  of 
"  C.,  F.  &  Co.,  (to  wit,  the  1st  of  February,  1857,)  in  viola- 
tion of  the  copartnership  agreement,  Farwell  opened  new 
"  books  for  that  firm,  and  transferred  the  merchandise  on  hand 
"  from  the  old  firm  to  them,  and  then  divided  them  between 
"  the  partners  in  the  ratio  of  profits,  and  credited  the  share  of 
"  each  to  their  private  stock  account  in  the  new  firm,  and  that 
"  said  merchandise  should  have  been  treated  as  so  much  money 
"  and  divided  in  the  ratio  of  capital."  On  page  25,  he  states, 
"  that  the  said  building  accounts  were  fictitious,  and  that 
"  Cooley  did  not  pay  the  balance  thereof  till  after  the  making 
"  of  said  agreement,  and  that  these  errors  in  the  books  caused 
"  said  books  to  misrepresent  the  relative  condition  of  the  part- 
"  ner's  accounts,  to  the  advantage  of  C.  &  F.,  and  without 
"  these,  his  account  was  relatively  as  good  as  theirs,  and  better 
"  than  Farwell's  ;  and  thereby  he  teas  induced,  (page  26),  by 
"the  condition  of 'the  said  books,  and  the  representations  of  C. 
"  <fc  F.)  to  make  said  agreement,  and  he  insists  that  for  the 
"  condition  of  the  books,  and  'for  the  consequent  errors  into 
"  which  he  fell,  his  partners  were  responsible  ;"  (the  books 
were  then  relied  on  by  complainant,  and  the  entries  therein 
were  examined  by  him),  "and  therefore  said  agreement  is  a 
"  fraud  upon  him."  On  page  24  he  states  that  "  the  mode 
"  adopted  by  charging  interest,  was  without  his  knowledge  or 
"  consent,  and  it  never  came  to  his  knowledge  until  he  institu- 
"  ted  an  investigation." 

Do  these  allegations  contain  sufficient  to  charge  the  defend- 
ants, C.  and  F.,  with  fraud  ?  To  sustain  his  bill,  complainant 
must  do  at  least  three  things,  to  wit : 

First.  He  must  make  positive  charges  of  fraud  touching 
the  matters  specified. 

Second.  If  his  charges  of  fraud  are  sufficient,  then,  were 
the  statements  and  representations'  upon  which  he  bases  his 
said  chai'ges,  material,  and  does  he  aver  that  he  relied  upon 
the  said  representations,  and  had  no  other  means  of  knowing 
or  learning  the  truthfulness  or  falsity  of  the  same? 

Third.  If  such  charges  and  averments  are  sufficient,  then, 
has  he  proved  them? 

1st.     We  answer,  that  complainant  has  not,  in  fact,  made  a 


121 

sufficient  charge  of  fraud  in  his  bill.  He  has  evidently  made 
strenuous  efforts  to  bring  himself,  in  this  respect,  within  the 
rule  ;  and,  in  his  attempt,  he  has  made  or  presented  a  strange 
medley  of  allegations — inconsistent  and  conflicting.  But  he 
has  failed  to  make  a  charge  of  fraud  in  such  a  manner  as  to 
give  himself  the  benefit  of  the  same,  either  in  law  or  in  equity. 
Fraud  is  not  to  be  imagined  or  inferred.  It  must  be  preferred 
in  such  a  manner  and  form  as  to  give  the  court  to  understand, 
by  a  clear  and  distinct  charge,  with  proper  averments,  that  the 
complainant  has  been  defrauded,  without  having  the  power  or 
means  at  his  command  to  avoid,  or  to  inform  himself  upon  the 
facts  which  constitute  it.  In  other  words,  complainant  cannot 
close  his  eyes  to  facts  that  are  spread  out  before  him,  and 
which,  by  simply  opening  them,  he  could  have  seen  and  read  : 
and  then,  becaiise  he  refused  or  neglected  so  to  do,  upon  some 
fancied  injury,  or  by  some  imaginary  loss,  sustained  by  his  own 
neglect,  come  into  a  court  of  equity  to  be  relieved  from  the 
consequences  of  his  own  acts  and  neglects.  The  agreements  by 
which  the  said  firms  of  C.,  W.  &Co.,  Nos.  1  and  2,  were  formed 
provide,  that  the  partners  were  to  look  to  the  books  of  account 
for  information  as  to  the  condition  of  said  firms,  and  that  of 
the  private  stock  accounts  of  the  partners ;  and  that  in  the 
said  firm  of  C.,  F.  &  Co.,  at  the  termination  of  the  contract, 
Farwell  was  to  render  to  each  partner  a  just  and  true  state- 
ment of  the  condition  of  the  firm,  and  the  amount  due  to  each 
from  the  assets.  This  was  all  done.  An  annual  statement, 
(the  testimony  says),  was  made  and  furnished  to  each  partner. 
He  states,,  it  is  true,  that  this  was  not  done  ;  but  we  prove  that 
it  was  done,  and  he  fails  to  make  the  contrary  appear  by  a 
single  witness.  More  than  this,  we  prove  that  he  must  have 
had  personal  knowledge  of  the  true  condition  of  all  these  firms, 
and  of  the  private  and  stock  accounts  of  the  partners  ;  for  his 
office  was  in  the  office  where  the  books  were  kept,  and  he,  with 
the  other  partners,  had  free  access  to  them.  In  addition  to  this, 
Messrs.  Simeon  Farwell  and  Leiter  testify,  that  he  made  inqui- 
ries of  them  about  his  account,  and  they  answered  such  inqui- 
ries, and  that  he  received  an  annual  statement  of  his  account, 
and  the  firm's  condition.  Mr.  Leiter  also  testifies,  that  he  even 
inquired  of  him  about  the  said  charge  of  813,000  to  his  account 
in  consideration  of  the  sale  to  him  of  the  interest  of  C.,  W.  & 
Co.,  in  the  assets  of  C.  N.  H.  &  Co.,  and  that  he  (Mr.  Leiter,) 

16 


122 

at  that  time,  to  wit,  soon  after  said  agreement  of  the  21st  of 
January,  1862,  was  made,  informed  complainant  of  the  inter- 
est charged  to  his  account  in  deficit  of  capital  from  $80,000, 
and  that  he  made  no  reply  whatever.  He,  himself,  brings  for- 
ward the  fact  of  his  knowledge  of  this  interest,  and  of  the 
division  of  the  goods  in  the  ratio  of  profits,  by  his  said  "  Ex- 
hibit A"  to  Spink's  deposition,  on  page  44  of  ev. ;  yet  with  all 
these  facts  so  well  known  to  him,  he  comes  into  this  court  and 
says  he  knew  nothing  of  them. 

But  these  false  allegations  he  had  determined  to  make  so 
prominent  in  his  bill,  that  in  his  efforts  to  prefer  his  charges,  he 
tumbles  them  in  such  a  manner  that  he  stands  self-convicted 
of  presenting  false  statements,  and  utterly  fails  after  all  to  make 
a  sufficient  legal  charge  of  fraud.  His  statement  on  page  24, 
that  he  never  knew  of  the  said  charge  of  interest,  in  the  face 
of  said  "  Exhibit  A ;  "  and  his  statement  that  he  knew  nothing 
of  the  private  accounts  and  that  he  never  examined  the  books ; 
in  the  face  of  his  statement  on  page  18,  that  the  books  011  the 
21st  of  January,  1862,  "gave  color  to  the  statements  made  to 
him ; "  and  then  his  statement  on  page  25  and  26,  "  that  the 
errors  in  the  books  caused  said  books  to  misrepresent  the  rela- 
tive condition  of  the  partner  accounts,"  and  that  thereby  "  he 
was  induced  (that  is  the  books  induced  him)  by  the  condition 
of  the  said  books  to  make  said  agreement  (of  the  2lst  of  Jarty, 
1862),  and  he  "  insists  that  for  the  condition  of  the  books  and 
for  the  consequent  errors  in  which  he  fell,  his  partners  are 
wholly  responsible"  Is  this  a  sufficient  charge  of  fraud  ?  Can 
a  fraud  be  made  to  appear  from  these  statements  of  the  com- 
plainant !  If  he  had  made  in  other  portions  of  his  bill  sufficient 
charges  of  fraud,  these  statements  relieve  against  all  of  them. 
The  law  upon  this  subject  is  explicit,  and  it  is  stated  by  Chief - 
Justice  Story,  as  follows  : 

"  It  is  said  that  if  a  representation  is  made  to  another  person 
"  going  to  deal  in  matters  of  interest  upon  the  faith  of  that 
"  representation,  the  representation  shall  be  made  good ;  but 
"  to  justify  an  interposition  in  such  cases,  the  misrepresentation 
"  must  not  only  be  proved  ;  but  that  it  is  a  matter  of  substance, 
'•  or  important  to  the  interest  to  the  other  party,  and  that  it 
"  actually  does  mislead  him.  For  if  the  misrepresentation  was 
"  a  trifling  or  immediate  thing ;  or  if  the  other  party  did  not 
"  trust  to  it;  or  icas  not  misled  by  it  /  or  if  it  was  vague  and 


"  inconclusive  in  its  own  nature;  or  if  it  was  a  matter  of 
"  opinion  or  fact  equally  open  to  the  inquiries  of  both  parties, 
"  and  in  regard  to  which  neither  could  be  presumed  to  trust 
"  the  other ;  in  these  and  like  cases  there  is  no  reason  for  a 
"  Court  of  equity  to  interfere  to  grant  relief  upon  the  ground 
"  of  fraud."  1st  Story  Equity,  sec.  191. 

Upon  the  same  matter,  Justice  Kent  says :  "  But  ordinarily, 
"  matters  of  opinion  between  parties  dealing  upon  equal  terms, 
"  though  falsely  stated,  are  not  relieved  against ;  because  they 
"  are  not  presumed  to  mislead  or  influence  the  other  party, 
"  when  each  has  equal  means  of  information."  Ib.  sec.  197. 
2d  Kent,  Com.  sec.  39,  page  485. 

Justice  Kent  remarks  again,  "  the  common  law  affords  to 
"  every  one  reasonable  protection,  but  it  does  not  go  to  the 
"  romantic  length  of  giving  indemnity  against  consequences  of 
"  indolence,  or  a  careless  indifference  to  the  ordinary  and 
"  accessible  means  of  information.  If  attention  is  wanting, 
"  where  attention  icould  have  been  sufficient  to  protect  him 
"from  surprise  or  imposition,  the  maxim  '•caveat  emptor'1 — 
"  *  let  the  purchaser  take  heed,'  applies.  Let  the  person  buying 
"  see  that  the  title  is  good.  2d  Kent,  Com.  484-5. 

He  further  states,  "  But  there  is  a  settled  distinction  in 
"  equity  between  enforcing  specifically  and  rescinding  a  con- 
"  tract.  An  agreement  may  not  be  enforced,  and  yet  not  be 
"  so  objectionable  as  to  call  for  the  exercise  of  equity  jurisdic- 
"  tion  to  rescind  it.  It  does  not  follow  that  a  contract  of  sale 
"  is  void  in  law  merely  because  equity  will  not  decree  a  spe- 
"  cific  performance."  2  Kent,  Com.  487,  491-2.  Seymour  vs. 
Delancey,  6  John,  oh.  222. 

SECOND  POINT. 

But  suppose  for  the  sake  of  the  argument,  that  we  admit  for 
the  time  being,  that  complainant's  charges  of  fraud  are  suffi- 
cient, he  must  prove  such  charges,  which  he  lias  failed  to  do. 

The  evidence  already  introduced,  shows,  that  Wadsworth, 
at  the  time  of  making  and  entering  into  said  agreement  of  the 
21st  of  January,  1862,  knew  all  about  the  books  of  account  of 
all  the  said  firms — that  he  had  full  and  free  access  to  them — 
that  he  knew  about  the  said  division  of  goods  between  the 
partners  in  the  ratio  of  profits,  and  that  said  divisions  were 
carried  to  the  credit  of  the  capital  stock  of  each  respective 
partner  in  the  succeeding  firms,  and  he  knew  about  the  charge 


124 

of  interest  at  six  per  cent,  upon  deficiency  and  surplus  of  capi- 
tal in  the  said  firm  of  Cooley,  Farwell  &  Co.  For  this  evi- 
dence, see  ante  pages  from  39  to  50,  and  from  78  to  89.  As  we 
have  already  said,  Mr.  Wads  worth  charges  in  his  own  bill  on 
pages  18,  21,  23,  that  at  the  time  of  the  making  of  said  agree- 
ment, the  said  "  books  of  account  gave  color "  to  the  state- 
ments made  by  C.  and  F.  to  him,  and  that  at  the  time  of  the 
formation  of  the  firm  of  C.,  F.  &  Co.,  "  Farwell  opened  new 
"  books  for  that  firm  and  transferred  the  available  assets  of 
"  the  old  firm  (of  C.,  W.  &  Co.)  including  the  merchandise, 
"  and  divided  the  merchandise,  half  to  Cooley  and  one  quarter 
"  to  Wadsworth  and  Fanvell  each,  and  credited  such  division 
"  of  each  partner  to  his  private  stock  account  in  the  said  new 
"  firm  in  that  ratio." 

By  this  statement  in  his  bill,  he  not  only  makes  known  his 
knowledge  of  said  transaction  at  that  time,  but  he  declares  the 
fact,  that  the  said  division  of  the  said  merchandise  betwee'n 
the  partners  was  made  by  them  in  the  ratio  of  profits  as  early 
as  February  1st,  1857.  Take  these  statements  in  connection 
with  another,  before  referred  to,  on  pages  25  and  26  of 
his  bill,  to-wit,  "  that  the  errors  in  the  books,  caused  said 
"  books  to  misrepresent  the  relative  condition  of  the  partners' 
"  accounts"  and  that  thereby,  "  he  was  induced  (not  by  state- 
"  ments  of  C.  and  F.,  but)  by  the  condition  of  the  said  books 
"  to  make  said  agreement"  and  then  to  fasten  this  inducement 
"  upon  the  books,  he  adds,  that  "  he  insists,  that  for  the  condi- 
"  tion  of  the  books  and  for  the  consequent  errors  in  which  he 
"fell,  his  partners  were  wholly  responsible"  Did  not  then 
complainant  know  of  the  division  of  the  said  goods  in  the  ratio 
of  profits  and  of  their  disposal  as  aforesaid — and  of  the  inter- 
est upon  his  account,  and  of  the  condition  of  his  private 
account  relatively  to  that  of  his  partners/and  of  the  condition 
of  said  books  ?  He  must  have  known  all  about  these  matters. 
He  cannot  escape  any  other  conclusion,  for  he  stands  self-con- 
victed by  his  own  bill  as  well  as  by  the  said  evidence  referred 
to.  If  he  did  know,  or  if  he  might  have  known,  then  there  is 
no  fraud. 

But  Mr.  Wadsworth  states  in  his  said  bill,  that  his  capital 
stock  in  the  said  firm  of  Cooley,  Farwell  &  Co.  was,  relatively, 
as  great  as  Cooley's,  and  much  greater  than  Farwell's.  Let 
us  examine  the  evidence,  and  see  what  was  the  actual  per 


Centage  of  the  cash  capital  paid  into  said  firm's  capital  stock 
by  the  several  partners  at  the  time  said  agreement  was  made  ? 

Mr.  Spink  testifies,  on  page  119,  cross  107,  on  the  basis  that 
said  cash  capital  stock  was  to  be-  $200,000,  that 
Cooley  paid  in  the  sum  of  $89,046.77,  or  48  per  cent. 

Wadsworth  54,983.05,  or  30 

Farwell      -  41,349.70,  or  22 

Cooley  should  have  furnished  $100,000,  or  50  percent,  of  the 
capital ;  hence  he  was  short  2  per  cent,  on  his  share. 

Wadsworth  should  have  furnished  $80,000,'  or  40  per  cent, 
of  the  same,  and  thus  he  was  short  10  per  cent. 

Farwell  should  have  furnished  $20,000  cash  capital,  but  he 
furnished  $41,349.70,  or  12  per  cent,  more  than  he  agreed  to. 
Thus  Wadsworth  is  proved  to  be,  relatively,  short  in  his  capi- 
tal to  that  of  his  partners,  as  well  as,  relatively,  largely  over- 
drawn, as  we  have  before  seen. 

If  the  complainant  had  not  opened  and  examined  the  said 
books  of  account,  yet  if  they  were  accessible  to  him  and  daily 
or  yearly  entries  were  made  in  them  for  his  and  his  partners' 
inspection,  then  the  books  and  the  entries  therein  are  admis- 
sions against  him  of  all  the  matters  therein  contained. 

See — 1  Greenleaf  ev.,  Sec.  198,  notes  3, 4,  5  and  6. 
Raggett  vs.  Musgrave,  2  Carrington  and  Payne,  556. 
Alderson  vs.  Clay,  1  Stark,  R.  405. 
Wiltzie  vs.  Adanson,  1  Phil,  evidence. 
McBide  vs.  Watts,  1  McCord,  384. 
Cross  vs.  Robinson,  2  Wash.  C.  C.,  R.  588. 

THIKD    POINT. 

But,  suppose  again,  that  we  admit,  for  the  argument  sake, 
that  Wadsworth's  charges  of  fraud  are  sufficient,  and  that  the 
proof  sustains  such  charges  ;  yet,  before  he  can  maintain  this 
suit,  or  even  commence  it,  he  must  first  tender  to  Cooley,  Far- 
well  &  Co.  the  said  $10,000,  which  he  admits  he  received  from 
said  firm  under  the  said  agreement.  His  omision  to  do  this  is, 
in  law,  an  affirmance  of  said  agreement  on  his  part ;  and,  until 
such  tender  is  made,  he  cannot  claim  relief  from  the  provisions 
or  obligations  of  said  agreement.  There  is  nothing  more  cer- 
tain than  that  "  where  a  contract  is  to  be  rescinded,  it  must  be 
in  toto  and  the  parties  put  in  static  quo"  See  Hunt  vs.  Silk, 
5  East.  449,  and  2d,  Parsons  on  Contracts  192,  note  0. 

"  But  where  a  part  execution  of  an  agreement  takes  place, 


126 

Which  is  incapable  of  being  rescinded,  and  the  parties  cannot 
be  put  in  statu  quo,  the  situation  of  the  parties  have  been  al- 
tered, and  the  parties  are  left  to  other  remedies."  Ibid. 

"  Where  one  party  elects  to' rescind  a  contract  for  fraud,  lie 
must  return  the  consideration  received  before  any  right  of  ac- 
tion accrues,  and  it  is  not  enough  to  notify  the  party  defraud- 
ing and  call  upon  him  to  come  and  receive  the  goods,  but  he 
must  restore  the  other  party  to  the  condition  in  which  he  stood 
before  the  contract  was  made ;  if  the  fraudulent  person  has 
entangled  and  complicated  the  subject  of  the  contract  in  a 
manner  as  to  render  a  restoration  of  the  parties  to  their  orig- 
inal condition  and  rights,  the  party  injured  must  then  do  what 
he  can,  or  offer  to  return  what  he  has  received,  before  he  can 
rescind  the  contract."  Ibid. 

"  Generally,  no  contract  can  be  rescinded  by  one  of  the  par- 
ties, unless  both  can  be  restored  to  the  condition  in  which  they 
were  before  the  contract  was  made.  One  party  cannot  hold  a 
part  performance  and  rescind  the  balance."  2,  Parson  on  Con- 
tracts, 192-3. 

C.  and  F.  have  performed  all  the  conditions  imposed  upon 
them  by  the  said  agreement,  and  Wadsworth  has  received  all 
he  was  to  have  under  the  same ;  and  it  only  remains  to  divide 
the  said  "  remaining  assets,"  under  the  said  agreement,  and 
after  the  parties  thereto  had  changed  their  statu  quo,  so  that 
that  of  Cooley's  and  Farwell's  cannot  be  restored  to  them, 
Wadsworth  comes  into  this  Court  and  seeks  to  rescind  the 
said  contract  without  giving  up  his  portion  of  the  considera- 
tion which  he  has  received  under  the  same,  and  without  even 
offering  to  give  it  back.  (See  2,  Parsons  on  Contracts  192 
note  0. 

Judge  Story  says,  "  that  the  mere  fact  that  the  bargain  is  a 
"hard  one,  or  an  unreasonable  one,  is  not  generally  sufficient, 
"per  se,  to  induce  a  Court  to  interfere."  See  1st  Story,  Eqy., 
sec.  331. 

And  again,  it  is  held,  that  "  if  the  parties  act  under  a  mu- 
"  tual  innocent  mistake,  and  with  entire  good  faith,  the  con- 
"  cealment  or  misrepresentation  of  a  material  fact,  will  not  in- 
"  duce  the  Court  to  compel  the  party  concealing  it,  or  affirm- 
"  ing  it,  to  make  it  good,  or  place  the  other  party  in  the  same 
"  situation  as  if  the  fact  were  as  the  latter  supposed."  See  1st 
Story,  Eqy.,  sec.  272. 


127 

FOURTH   POINT. 

The  agreement  of  January  21st,  1862,  was,  in  fact,  one  of 
accord  and  satisfaction ;  as  least,  so  far  as  it  went.  That  is,  it 
was  a  full  settlement  of  all  their  partnership  transactions,  and 
a  final  disposal  of  their  several  interests  in  all  the  said  firms, 
upon  a  new  and  independent  basis. 

The  copartnership  agreement  of  Cooley,  Farwell  &  Co.  was 
fulfilled  only  in  part  by  Cooley  and  Wadsworth — that  is,  neith- 
er of  them  had  paid  into  the  capital  stock  of  that  firm  the 
amount  specified  in  the  original  articles  of  copartnership, 
while  Farwell  had  paid  in  more  than  his  share,  as  we  have  just 
seen.  The  said  copartnership  had  nearly  arrived  to  its  limita- 
tion. What  was  to  be  done ?  The  partners,  too,  had  all  ex- 
ceeded in  their  personal  drafts  upon  the  joint  funds  the  sum  to 
which  they  were  severally  limited  by  their  original  agreement. 
Wads  worth's  over-drafts  were,  relatively,  much  larger  than 
cither  of  his  partners',  as  we  have  before  shown.  Something 
must  be  done  to  equalize  matters  between  them.  All  and  each 
of  the  partners  acknowledge  the  justice  of  this.  And  what  do 
they  and  each  of  them  do  in  the  premises  ?  Why,  they  meet 
together,  and  for  two  weeks  review  their  affairs.  Mr.  Leiter, 
in  answer  to  the  9th  Int.,  on  page  602,  says  "  that  they  were 
"  in  the  apartment  ot  Mr.  Wadsworth,  and  in  the  general  of- 
"  fice,  and  in  the  private  office  of  the  firm,  where  the  safe  and 
"  books  were  kept.  The  interviews  were  longer  than  ordinary 
"  interviews ;"  and  immediately  after  said  interviews,  to  wit, 
on  the  21st  of  January,  1862,  they  make  and  execute,  under 
their  several  hands  and  seals,  a  new  agreement  of  that  date. 
They  then  at  once  enter  upon  the  said  agreement,  and  in  fact, 
fulfill  all  and  every  of  its  provisions,  except  the  last  one,  to 
wit,  the  dividing  between  them  the  "  remaining  assets,  pro 
"  rata,  according  to  the  amount  due  to  each" 

Under,  and  by  virtue  of,  this  agreement,  Wadsworth  takes 
from  the  firm's  assets,  for  his  personal  use,  the  sum  of  $10,000 
and  it  is  charged  to  his  private  account.  Cooley  and  Farwell 
take  the  goods  at  their  invoice  price,  and  these  are  charged  to 
their  private  account ;  and  the  said  Cooley  &  Farwell  agree  to 
pay  all  the  debts  and  the  expenses,  with  the  assets  named  in 
said  agreement,  and  relieve  Wadsworth  from  all  labor,  care 
and  responsibility  in  that  regard.  All  this  is  done  by  the  said 
respective  parties.  What  remains  to  be  done  is  simply  to  di- 


128 

vide  the  "  remaining  assets  between  the  said  parties,  pro  rata, 
" according  to  the  amount  due  to  each" 

Is  not  this  an  accord  and  satisfaction  ?  (See  2d  Parson  on 
Contracts,  page  193.) 

"A  deed  of  dissolution,"  says  Colyer,  on  Partnership,  Sec. 
242,  "  which,  on  the  face  of  it,  purports  to  settle  all  past  trans- 
"  actions,  and  to  prevent  all  future  reckonings  between  the  par- 
"  ties,  will  extend,  under  certain  circumstances,  to  contracts 
which  were  not  originally  partnership  contracts,  and  where, 
upon  the  dissolution  of  a  partnership,  it  is  agreed  that  certain 
specific  articles,  shall  become  the  exclusive  and  separate  prop- 
erty of  one  partner,  that  agreement  is  final,  and  the  other  part- 
ners have  no  lien  upon  that  property  in  case  of  a  deficiency  of 
assets." 

Collyer  on  P.,  Sec.  243. 
Warren  vs.  Taylor,  8  Sim.  599. 
Hobert  vs.  Howard,  9  Mass.  304. 

The  law  lays  down  the  rule,  that,  "  where  the  right  to  rescind 
"  a  contract  springs  from  a  discovered  fraud,  a  party  must  not 
"  only  restore  the  other  to  his  original  statu  quo,  but  he  must 
"  rescind  as  soon  as  circumstances  will  permit,  and  must  not 
"  go  on  with  the  contract  after  the  discovery.  He  must  rescind 
"  it  at  once,  and  any  delay  will  be  a  waiver  of  his  right  to  re- 
"  scind.  The  mere  loss  of  time,  if  it  be  considerable,  goes  far 
"  to  establish  a  waiver  of  right ;  and  if  it  be  connected  with 
"  an  obvious  ability  on  the  part  of  the  defrauded,  to  discover 
"  the  fraud  at  a  much  earlier  period,  by  the  exercise  of  ordi- 
"  nary  care  and  intelligence,  it  would  be  almost  conclusive." 

Second  Parsons  on  Contracts,  192,  278,  279,  280,  Notes  R, 
S,  T,  Martin  vs.  Roberts,  5  Gushing,  126  Note  R ;  Mason  vs. 
Bovet,  1  Dennis,  69  Note  L  ?  Selway  vs.  Fogg,  M.  &  W.,  83 
Note  T  ;  Saratoga  R.  R.  vs.  Row,  24  Wend  74  ;  Herrin  vs. 
Libby,  36  Me.  350,  Ely  den.  Larmon  vs.  Morain,  8  Bar.  10  ; 
Campbell  vs.  Fleming,  1  Adolphus  &  Ellis,  40  Note  U. 

This  agreement  of  January  21st,  1862,  being  made  and 
signed  by  all  the  partners,  Mr.  Wadsworth  is  to  be  presumed 
to  have  participated  in  the  labor  of  ascertaining  the  facts  that 
make  up  its  contents,  and  thereby,  (if  he  did  not  know  before), 
informed  himself  in  regard  to  every  particular  therein  stated 
and  referred  to.  Is  there  any  evidence  showing  that  Wads- 
worth  did  not  have  or  could  not  have  had  such  information 


129 

when  he  entered  into  said  agreement  with  his  partners  ?  None, 
whatever.  But,  on  the  contrary,  there  is.  evidence  showing 
that  he  did  have  this  information.  It  cannot  be  denied  that 
his  opportunities  for  information  Avere  as  good  as  either  Cool- 
ey's  or  Farwell's.  His  office  was  in  the  store,  and  in  one  of 
the  apartments  of  th.1  general  office  of  the  firm,  where  the  safe 
and  all  the  books  of  account  of  all  the  said  firms  were  kept. 
He  had  free  access  to  the  books  and  to  all  papers;  and  there  is 
no  pretense  that  he  did  not  have.  More  than  this,  Mr.  Leiter 
testifies,  on  page  574,  Int.  15,  16,  and  17,  that  "  annual  state- 
"  ments  were  made  of  the  merchandise  and  money  drawn  by 
"  each  member  of  the  firm ;  each  partner's  statement  was  giv- 
"  en  to  him.  At  the  close  of  each  year,  statements  were  made 
"  up  on  the  books  of  C.,  W.  &  Co.  and  C.,  F.  &  Co.— the 
"  moneys  drawn  by  each  partner  were  placed  in  the  back  part 
"  of  the  ledger,  and  the  nett  profits  were  placed  to  a  profit  and 
"loss  account  in  the  same  ledger.  There  also  appeared  on  the 
"  books  of  C.,  W.  &  Co.,  the  amount  of  capital  stock  furnish- 
"  ed  by  each  partner,  and  on  the  books  of  C.,  F.  &  Co.,  the 
"  capital  stock  was  to  be  furnished,  or  the  capital  of  the  firm. 
"  I  herewith  append  a  copy  of  said  statements,  marked  "  Ex- 
"  hibit  No.  1,"  see  pages  598,  599,  600,  601,  602,  603  of  prin- 
"  ted  evidence." 

Not  only  this,  but  Mr.  Leiter  further  says,  that  he  (Wads- 
worth)  made  enquiries  of  him  about  his  account  and  about  the 
said  charge  of  $13,000  to  him  ;  and  that  some  time  before  the 
21st  of  January,  1862,  Mr.  Leiter,  at  his  request,  made  out  a 
special  statement  for  him  of  "  his  account  in  the  several  firms, 
covering  his  entire  interest  therein.  I  gave  him  (says  Mr. 
Leiter,)  an  account,  showing  the  moneys  he  had  drawn  in  the 
different  years,  and  of  his  proportion  of  the  profits  so  far  as 
they  were  divided  on  the  books,  and  also  the  stock  paid  into 
the  several  firms.  On  the  books  of  C.,  F.  &  Co.,  profit  and 
loss  was  not  divided,  but  I  gave  him  the  aggregate." 

Nor  is  this  all,  for  the  said  estimate  made  by  Mr.  Farwell 
for  him,  about  the  20th  of  January,  1862,  which  he  produces 
in  evidence  attached  to  Mr.  Spink's  deposition,  marked  "  Ex- 
hibit A,"  divides  the  goods  on  hand  of  the  last  firm  of  C.,  W. 
&  Co.,  between  the  partners  in  the  ratio  of  profits,  and  charges 
him  with  interest  on  his  deficit  of  capital  in  the  firm  of  C.,  F. 
&  Co.,  from  the  sum  of  $80,000,  and  yet  he  claims  that  he  had 


no  information  upon  these  matters,  and  was  deceived  by  his 
partners,  and  that  the  books  of  accounts  deceived  him,  and 
that  from  these  causes  he  made  a  mistake. 

That  which  is  plain  upon  the  books  must  be  taken  as  known 
by  all  the  partners. 

Mr.  Spink  says,  on  page  221,  cross  195,  "that  in  his  examin- 
ation of  the  books,  he  discovered  no  evidence  of  deceit  or  in- 
tention to  deceive  in  the  manner  they  were  kept." 

Mr.  Leiter  testifies,  in  his  second  deposition,  on  page  691, 
int.  5,  "  that  the  books  of  account,  after  the  taking  of  the  said 
invoice  on  the  9th  of  January,  1862,  were  in  a  condition  to 
show  the  profit  and  loss  account,  from  the  accounts  making  it 
up,  except  the  matter  of  clerk  hire  and  interest.  He  then  had 
all  the  facilities  for  closing  said  copartnerships  intelligently  be- 
fore him,  and  he,  unquestionably,  did  so  close  them." 

FIFTH   POINT. 

Fraud  is  not  to  be  presumed,  either  in  law  or  equity.  It 
must  be  established  by  proof.  1  Story,  Equity,  sec.  190. 

The  materiality  of  the  fraud  is  indispensable,  and  it  must 
not  be  equally  open  to  each  and  every  of  the  parties  thereto. 
If  it  is  equally  open  to  the  parties,  neither  can  take  'advantage 
of  his  or  their  ignorance,  with  a  view  to  avoid  or  set  aside  the 
contract.  See  2  Parsons  on  Contracts,  pages  192  and  2*70  and 
note. 

1  Story,  Equity,  page  213,  sec.  191. 

Laidlow  vs.  Organ,  2d  Wheaton,  R.  78,  195. 

Evans  vs.  Bicknell,  6  Vesey,  173,182,  192. 

Wall  vs.  Stubb,  1  Maddock,  R.  80. 

Cadman  vs.  Homer,  18  Vesey,  10. 

2d  Kent  Com.,  page  485,  (4th  ed.) 

The  complainant  has  failed  to  introduce  any  proof  to  sus- 
tain the  charge  of  fraud,  by  a  single  witness.  Fraud  consists 
in  false  statements,  or  misrepresentations,  or  concealments  of 
facts,  by  which  a  person  is  unavoidably  misled.  What  false 
statement  or  statements,  made  by  either  Cooley  or  Farwell, 
has  the  complainant  proved  ?  Not  one.  What  false  repre- 
sentation or  representations,  made  by  either  Cooley  or  Farwell, 
has  he  proved  upon  them  ?  Not  one.  So  far  from  it,  he  has 
not  proved  that  they,  or  either  of  them,  ever  made  any  state- 
ment or  representation  to  him  at  any  time  of  any  kind.  What 
proof  of  concealment  or  deception  has  he  produced  against 


either  Cooley  or  Farwell  ?  JNone  whatever.  The  book  of  ev- 
idence, of  nearly  800  pages,  contains  none.  The  complainant 
says  that  both  Cooley  and  Farwell  made  statements  and  rep- 
resentations to  him  on  the  occasion  of  the  making  of  the  said 
agreement  of  the  21st  of  January,  1862,  and  that  the  books, 
agreeing  with  their  statements,  he  was  induced  to  make  said 
agreement,  but  he  is  wholly  without  proof  to  sustain  this  al!0- 
gation,  as  we  have  before  seen. 

Mr.  Spink  testifies,  on  page  221,  cross  195,  "  that  he  did  not 
discover  any  evidence,  in  his  examination  of  the  books  of  ac- 
count of  all  and  every  of  the  said  firms,  any  deceit  or  intention 
to  deceive  any  one  in  the  manner  they  or  any  of  them  were 
kept,  or  in  the  entries  therein." 

In  this  connection,  we  desire  also  to  call  attention  to  the  fol- 
lowing (further)  authorities  upon  the  points  of  concealment, 
false  statements,  &c.  "  If  the  means  of  investigation  is  at 
hand  and  not  improved,  relief  will  not  be  granted." 

Chapman  vs.  Shillito,  7  Beave,  S.  C.,  146. 

1  Chitty's  Equity  Digest,  page  930,  sec.  3. 
"  Inference  of  fraud  is  rebutted  by  the  subject  matter  of  the 
representation  being  equally  open  to  the  examination  of  both 
parties." 

2d  Drury  &  Walsh,  260-1. 

1  Chitty's  Equity  Digest,  page  930,  sec.  5. 
What  is  there,  then,  in  his  bill  under  the  evidence,  by  which 
he  (Wadsworth)  can  obtain  the  relief  he  seeks  ?  His  bill  is 
based  wholly  upon  suppositions,  which  fall  to  the  ground  as 
soon  as  touched,  for  the  want  of  proof.  And  his  evidence  is 
based  wholly  upon  suppositions,  as  his  main  witness,  Mr.  Spink, 
testifies : 

1st.  On  page  81,  cross  46  and  47,  Mr.  Spink  says  :  "  I 
could  not  and  should  not  have  taken  account  of  agreements, 
simply  represented  by  entries  and  dcducible  therefrom,  as  I 
was  requested  to  make  my  computations  (in  chief)  on  the  basis 
of  the  articles  of  copartnership,  and  that  he  received  his  in- 
structions from  Wadsworth  and  his  attorney  s."1"1 

2d.  The  three  firms,  as  we  have  before  seen,  were  treated 
by  both  Spink  and  Smith,  complainant's  accountants,  as  one 
continuing  firm,  instead  of  as  distinct,  and  differing  in  their  terms 
and  conditions.  Their  computations  in  chief  must,  therefore, 
be  full  of  errors,  and  present  a  distorted  result. 


141 

Mi*.  Spiuk  testifies,  on  page  136,  cross  ilS,  "  that  the  effect 
"  of  my  computations,  however,  on  the  balance  of  assets  of  the 
"three  firms  on  hand,  Feb'y  1,  1862,  would  not  be  to  change 
"  that  balance  had  I  figured  the  three  firms  as  one  continuing 
"  firm.  Nor  would  it  change  the  total  balances  due  each  part- 
"  ner,  February  1st,  1862,  with  the  exception  of  a  small  matter 
"  of  interest,  figured  on  deficit  of  capital  in  the  2d  firm  of  C., 
"W.  &Co." 

Mr.  Smith  testifies,  on  page  414,  cross  28,  "  I  made  my  cal- 
"  dilations  on  the  basis  of  the  books,  treating  the  concerns 
"  (the  firms  of  C.,  W.  &  Co.,  and  C.,  F.  &  Co.,)  as  one  and 
"  the  same  firm,  from  March,  1854,  to  Feb'y  1st,  1862." 

Mr.  Spink  testifies,  on  page  90,  cross  67,  "  that  the  books 
"  were  kept  accurately,  with  the  exception  of  the  matter  of 
"  errors  in  interest  made  in  favor  of  Wadsworth." 

On  page  105,  cross-int'ys  74,  75,  76,  77,  78  and  79,  he  says : 
"  The  books  show  full  credit." 

Mr.  Smith's  testimony  is  the  same  upon  these  matters. 

3d.  On  page  107  cross  77,  he  says,  "  that  there  was  no  injury 
"  done  to  either  of  the  partners  in  having  the  building  accounts 
"  stand  on  the  books  in  the  way  they  did,  neither  was  there 
"  any  impropriety  in  so  doing." 

4th.  He  testifies  on  page  114  and  96,  "  that  it  is  customary 
when  partners  fail  to  pay  into  the  firm  their  pro  rata  amount 
of  capital  to  charge  interest  on  the  several  deficits.  Thus  to 
that  extent  the  deficits  become  equalized.'1 

6th.  On  page  90  cross  68  he  testifies,  "  that  interest  at  6  per 
cent,  on  the  amount  of  capital  Wadsworth  was  short  of 
$80,000,  was  not  in  his  opiniona  fair  compensation  for  the  want 
of  the  same,  or  for  the  amount  of  labor  and  capital  agreed  to 
be  furnished  by  his  partners  "  (Cooley  and  Far  well). 

7th.  On  page  82  cross  44,  he  testifies,  "  In  my  computations 
in  chief  I  computed  no  interest  on  deficit  or  surplus  of  capital 
in  the  firm  of  C.,  F.  &  Co." 

8th.  On  page  86  cross  53  he  testifies,  that"  he  has  no  recol- 
lection of  casting  interest  in  the  firm  of  C.,  F.  &  Co.  by  reason 
of  over-drafts." 

9th.  In  page  106  cross  75  he  says,  "  that  interest  was 
charged  upon  the  said  two  building  accounts  and  paid  by 
Cooley  and  Farwell." 


loth.  On  page  115, 116 cross  99, he  says,  "that  the  average1 
balance  of  loans,  made  by  the  first  firm  of  C.,  F.  &  Co.,  from 
the  1st  of  March,  1862,  to  the  1st  of  January,  1863,  was 
$68,500.00,  and  from  the  1st  of  April,  1862,  to  the  1st  of  Sept., 
1862,  was  $109,000.  "In  my  computations  in  chief,  and  in 
"  my  cross-examination  I  did  not  take  these  advances  into 
"  consideration,  and  made  no  allowance  of  interest  for  the 
"  same,  while  the  books  did,  at  6  per  cent." 

llth.  On  page  116  cross  100  he  says,  "  that  interest  on  this 
amount  so  loaned  would  be  as  follows,  at  6  per  cent.  $4,110.53, 
at  10  per  cent.  $6,830.89." 

12th.  On  page  204,  205,  141,  cross  142,  he  testifies,  "  that  in 
"  his  computations  in  chief,  and  in  answer  to  86th  direct  int'y, 
"  he  included  in  the  account  against  Farwell  the  loan  of  $5,000 
"  when  it  should  not  have  been  included,  and  because  it  was  a 
"  special  loan.  The  actual  amount  drawn  by  Farwell,  exclu- 
"  sive  of  said  loan  (and  interest  thereon)  was  2,159.56  "  (instead 
of  $11,037.'79,  as  stated  in  said  86th  in  chief). 

13th.  On  page  205  cross  144,  he  says,  "  Wadsworth  did  not 
"have  the  right  to  draw  $10,112.65  more  than  Farwell  in 
"  either  firm,  as  stated  by  him  in  answer  to  the  89th  direct, 
"  and  that  his  answer  to  this  question  was  made  on  the  basis 
"  of  the  question  propounded." 

13th.  On  page  206  cross  145-6  he  testifies,  "  that  had  the 
"  articles  of  copartnership  and  the  books  of  account  and  the 
"  entries  therein  and  the  said  agreement  of  the  21st  of  January, 
"  1862,  been  submitted  to  him  as  the  evidence  of  the  agree- 
"  ments,  he  should  have  made  up  the  books  as  they  were 
"  made  up." 

From  this  testimony,  what  credit  is  to  be  given  to  the  figures 
and  results  of  Messrs.  Spink  and  Smith's  examinations  in 
chief  ?  They  commence  under  the  instructions  of  complainant 
and  his  counsel,  by  ignoring  all  the  actual  agreements  of  the 
partners,  1st,  by  treating  the  three  firms  as  one  continuing 
firm,  2d,  by  casting  interest  on  the  special  loan  of  $5,000  to 
Farwell  and  then  charging  the  principal  and  interest  to  his 
private  account  as  so  much  money  wrongfully  drawn  by  him ; 
3d,  by  dividing  the  goods  on  hand  in  the  ratio  of  capital  instead 
of  the  ratio  of  profits,  and  then  by  crediting  the  share  of  each 
under  such  ratio  to  his  capital  stock  in  the  succeeding  firm ; 
4th,  by  casting  interest  on  shortage  of  capital  in  the  firm  of  C., 


W.  <fc  Co.  when  it  is  in  favor  of  Wadsworth  (though  very 
slightly.  See  Spink,  page  136  cross  113),  and  omitting  such 
interest  in  the  firm  of  C.,  F.  &  Co.  when  it  is  against  Wads- 
worth  ;  5th,  by  wholly  rejecting  the  books  of  account  and  the, 
entries  therein,  and  the  said  agreement  of  the  1st  of  January, 
1862,  as  the  evidence  of  the  settlement  between  the  partners. 

6th.  By  treating  the  capital  of  the  firm  of  C.,  F.  &  Co..  as 
fully  made  up  by  Wadsworth  and  Cooley,  while  Wadsworth's 
is  only  about  half  made  up. 

7th.  By  omitting  the  interest  on  the  shortage  and  overplus 
of  the  capital  of  the  several  partners  in  the  firm  of  C.,F.  &  Co. 

8th.  By  including  the  Wabash  building  account  as  a  debit 
to  C.  and  F.,  when  that  account  of  $7,943.06,  was  actually 
paid  by  Cooley,  and  then  again  excluding  it  when  he  brings 
foncard  the  balances  of  the  several  partners  in  the  "  remaining 
assets  "  after  the  debts  of  C.,  F.  &  Co.  are  paid ;  thus  in  ap- 
pearance they  seek  to  distort  the  true  facts  as  to  the  relative 
condition  of  the  partners'  several  accounts,  in  this  one  parti- 
cular, to  the  amount  of  said  building  account,  to  the  disadvant- 
age of  Cooley  and  to  the  advantage  of  complainant.  (See 
Spink's  ev.,  page  74-5  cross  31). 

9th.  By  taking  no  account  of  the  time  or  service  capital  of 
C.  and  F.,  in. either  firm.  (See  ev.,  page  68  cross  25). 

This  is  the  mode  adopted  by  complainant  to  manufacture 
evidence,  to  prove  fraud  upon  his  partners  in  the  making  of 
the  said  agreement  of  the  21st  of  January,  1862.  They  do  not 
give  to  their  accountants  all  the  agreements  and  the  books  of 
account,  with  instructions  to  make  up  from  them  the  partner- 
ship and  personal  accounts,  but  they  put  their  accountants  into 
leading  strings  and  under  special  instructions,  giving  them  a 
hypothetical  basis  and  only  a  part  of  the"  agreements  of  the 
partners.  First  they  give  them  the  three  original  agreements 
as  a  pretended  basis,  but  at  the  same  time  instruct  them,  to 
disregard  said  agreements,  wherein  they  treat  said  firms  as  dis- 
tinct, and  direct  them  to  treat  them  as  one  continuing  firm. 

2d.  To  ignore  all  the  entries  in  the  books  of  account  wher- 
ever such  entries  disagree  with  their  said  instructions. 

3d.  To  ignore  the  division  of  goods  between  the  partners 
in  the  ratio  of  profits,  and  the  endorsements  made  from  the  di- 
vision of  goods  upon  their  stock  notes,  marked  Exhibits  No. 
1,  2  and  3,  on  page  148  of  ev.,  and  the  transfers  of  such  divi- 
sions to  capital  stock  of  the  partners  in  that  ratio. 


135 

4th.  To  treat  the  goods  as  cash,  (when  they  well  know 
that,  in  the  absence  of  an  agreement,  there  is  no  means  of  fix- 
ing their  value,)  and  then  divide  them  in  the  ratio  of  capital 
as  so  much  realized  cash. 

5th.  To  cast  interest  upon  deficit  of  capital  in  the  firm  of 
C.,  W.  &  Co.,  because  there  would  be  a  trifling  advantage  to 
Wadsworth  by  so  doing,  and  to  omit  it  in  the  firm  of  C.,  F.  & 
Co.,  because  it  would  be  against  him,  thus  violating  their  hy- 
pothesis of  one  continuing  firm. 

6th.  To  cast  interest  on  the  said  loan  of  $5,000  to  Farwell 
by  the  firm  of  C.,  W.  &  Co.,  No.  2,  and  then  charging  the 
whole  amount  of  principal  and  interest  to  his  private  account 
as  so  much  money  wrongfully  drawn  by  him  in  violation  of  the 
agreements. 

7th.  By  withholding  the  said  agreement  of  the  21st  of  Jan- 
uary, 1862,  from  said  accountants,  and  by  directing  them  to 
treat  the  said  goods  on  hand  and  transferred  to  Cooley  and 
Farwell  under  said  agreement,  as  so  much  realized  cash,  in- 
stead of  so  many  unconverted  assets  taken  by  Cooley  and  Far- 
well. 

8th.  By  instructing  them  to  wholly  ignore  the  service  capi- 
tal of  Cooley  and  Farwell  in  the  said  firms,  under  the  copart- 
nership agreements. 

9th.  By  charging  the  Wabash  Avenue  building  account  to 
the  account  of  Farwell,  when  it  belonged  exclusively  to  Cooley, 
and  was  fully  paid  by  him  with  interest. 

What  is  such  evidence  worth,  when  it  has  no  basis  in  fact, 
and  when  it  is  of  itself  the  grossest  fraud  possible  upon  the 
facts  in  the  case,  and  does  violence  to  every  agreement  made 
by  and  between  the  partners  ? 

Who  does  not  see  that  computations  made,  and  balances 
brought  down  upon  such  a  fictitious  basis,  so  unjust,  and  so  in 
the  teeth  of  the  actual  agreements  of  the  partners,  must  result 
in  nothing  but  a  perfect  and  utter  perversion  of  all  the  facts, 
under  all  the  agreements  made  by  and  between  the  said  part- 
ners ?  No  wonder  that  Mr.  Spink  denies  that  he  was  the  author 
of  the  basis  of  his  computations  in  chief,  and  says,  "  that  his 
computations  were  based  upon  the  hypothesis  given  him  by 
Wadsworth  and  his  attorneys" 


136 

SIXTH    POINT. 

With  all  the  perversions  of  fact  set  forth  ^by  complainant, 
let  us  see  what  the  actual  difference  is  between  the  said  com- 
putations in  chief,  on  the  said  "  hypothesis  of  Wadsworth  and 
his  attorneys,"  that  all  the  agreements  made  and  entered 
upon  by  and  between  the  said  partners,  as  shown  by  them  in 
their  books  of  account,  and  their  written  agreements  taken  and 
considered  together. 

1st.  In  the  account  of  Cooley,  the  difference  is  only 
$503.06. 

2d.  In  the  account  of  Wadsworth,  the  difference  is  only 
$4,1 74.66  against  him. 

3d.  In  the  account  of  Farwell,  with  the  interest  corrected, 
the  difference  is  only  $5,213.74  in  his  favor.  (See  ev.  pages 
70  to  74,  cross  30.) 

The  grand  total  difference  between  Spink's  examination  in 
chief  and  the  basis  of  all  the  agreements  made  between  the 
partners,  would  be  as  follows  : 

Cooley^S)  $757.62  in  his  favor,  as  the  books  stand;  with  the 
interest  account  computed  correctly,  a  difference  of  only 
$221. 70  in  his  favor. 

Wtidsworttfs,  $6, 882.10  in  his  favor,  and  with  the  interest 
computed  correctly,  a  difference  of  only  $9,390.81  in  his  favor. 

FarwelVs,  $6,717.92  against  him;  with  interest  computed 
correctly,  the  difference  against  him  is  only  $8,390.64.  (See 
Spink's  ev.,  pages  74-5,  cross  31.) 

The  cause  of  this  difference.  Mr.  Spink  testifies,  on  page 
75,  cross  32,  that  the  causes  "  are  principally  on  account  of  in- 
"terest  being  figured  on  the  books  of  C.,  F.  &  Co.,  on  short- 
"  age  of  (cash)  capital,  from  $200,000  divided  in  proportion  of 
"  one-half  to  Cooley,  two-fifths  to  Wadsworth,  and  one-tenth 
"  to  Farwell,  and  by  the  charge  of  interest  on  the  books  on 
"  assets  transferred  after  the  division  of  the  goods,  and  through 
"  the  transfer  and  division  of  goods  on  the  basis  of  profits  in 
"the  books;  while  in  my  computations  (in  chief)  they  are 
"  transferred  and  divided  on  the  basis  of  first  refunding  the 
"  capital  and  then  dividing  (the  balance)  on  the  basis  of  profits." 
(See  also  ev.,  page  107,  cross  79,  80.) 

Here  is  the  whole  case  in  a  nut-shell.  The  question,  then, 
is  simply  this :  Were  the  goods  so  on  hand  and  divided  be- 
tween the  partners  in  the  ratio  of  profits,  and  the  said  interest 


137 

on  the  shortage  of  capital  from  the  said  respective  amounts  di- 
vided and  cast  by  the  agreement  or  knowledge  and  consent  of 
all  the  partners  ?  The  complainant  says,  in  some  parts  of  his 
bill  of  complaint,  that  he  made  no  such  agreement  and  gave 
no  consent  thereto,  and  had  no  knowledge  of  that  transaction 
until  some  time  in  March,  1863.  The  defendants  say  that  he 
made  such  agreements  and  that  he  had  a  statement  of  the 
facts.  The  evidence  presented  in  said  Exhibit  A,  of  Spink's 
deposition,  as  we  have  before  seen,  which  complainant  pro- 
duces, proves  that  he  did  know  of  both  ;  and  the  testimonyrof 
both  Spink  and  Leiter  is,  that  said  Exhibit  must  have  been 
made  out  about  the  20th  of  January,  1862,  and  the  said  agree- 
ment was  made  on  the  21st  of  January,  1862.  The  agreement 
which  he  seeks  to  set  aside,  was  based,  in  part,  upon  this  state- 
ment, or  estimate.  This  statement  contains  both  the  interest 
against  Wadsworth  on  his  said  deficit  of  capital  from  $80,000, 
and  the  division  of  the  goods  in  the  ratio  of  profits.  Upon 
this  point,  he  stands  convicted  of  making  a  false  allegation. 

As  to  the  division  of  the  goods  on  hand  from  the  three  said 
firms,  the  evidence  shows  that  they  were  divided  in  the  ratio  of 
profits  in  the  three  firms  and  so  transferred  upon  the  books. 
(See  Spink's  ev.,  pages  60,  61  and  62,  cross  5,  6,  7,  8  and  9.) 
By  reference  to  the  bill  of  complaint,  pages  18,  22,  23,  25  and 
26,  it  will  be  remembered  that  complainant  acknowledges  that 
he  knew  all  about  such  division  of  the  goods  in  the  ratio  of  the 
profits  of  the  interest  account,  and  that  he  also  knew  that  his 
private  account  was,  relatively,  largely  overdrawn. 

Mark  his  language,  hereinbefore  quoted,  to  wit : 

1st.  Page  18.  "The  books  of  account  of  said  C.,  F.  &Co., 
"  were  kept  in  such  a  manner  as  to  give  color  to  the  represen- 
tations of  Cooley  and  Farwell,  that  his  account  was,  relatively, 
overdrawn." 

2d.  Page  21,  22,  23.  "  That  at  the  date  of  the  extension 
"  (to-wit,  4th  December,  1856),  Farwell  regardless  of  his  duty 
"  and  in  direct  violation  of  his  agreement  *  *  *  opened 
"  new  books  and  made  a  transfer  of  the  available  assets  in 
"  manner  following ',  to-wit :  goods  on  hand  $115,369.84  to  the 
ujirm  of  C.,  F.  &  Co.,  charging  the  concern  with  the  same  as 
"  stock,  and  crediting  Cooley  on  his  aforesaid  subsection, 
"  half  of  the  same,  viz.,  $57,684.92  to  Wadsworth  and  Far- 
"  well,  one-quarter  each,  828,842.46.  On  page  25  he  alleges, 

18 


138 

"  that  the  various  errors  above  noted  in  the  said  firm's  books, 
"  caused  said  books  to  misrepresent  the  relative  condition  of 
"  said  partners  greatly  to  the  advantage  of  C.  and  F.,  and 
"  to  complainant's  disadvantage,  and  to  give  color  to  the 
"recital  of  said  agreement  of  January  2Ist,  1862,  that 
"  your  orator  had  largely  overdrawn  his  account."  On 
page  26  he  further  alleges,  "  that  by  means  of  the  erroneous 
"  entries  in  said  books,  and  by  representing  said  books  to  be 
"  correct,  induced  your  orator  to  enter  into  said  agreement  of 
"  Jan.  21s£,  1862,  and  that  he  signed  it  under  an  errone- 
"  ous  ^impression  of  his  rights  in  the  premises,  induced  by 
"  the  aforesaid  condition  of  said  firm  books  *  *  *  and 
"  that  for  the  condition  of  said  books  and  for  the  consequent 
"  error  into  which  he  fell  his  said  partners  are  wholly  respons- 
"  idle.  And  as  soon  as  he  discovered  his  mistake  he  repu- 
"  diated  the  said  agreement  of  January  l,2st,  1862." 

These  confessions  speak  volumes !  It  was  then  "  the 
wrongful  entries  in  the  books,  represented  to  be  correct,  that 
induced  him  to  enter  into  said  agreement."  His  reliance  was 
upon  the  "  entries  in  the  books  "  of  account,  and  "  these  entries 
"  induced  him  to  make  the  agreement,  and  he  signed  it  under 
"  an  erroneous  impression  of  his  rights  in  the  premises,  induced 
"by  the  aforesaid  condition  of  said  firm  books."  This  lan- 
guage makes  a  clean  sweep  of  the  charge  of  deception  against 
Cooley  and  Farwell.  It  shows,  conclusively,  that  Wadsworth 
did  not  rely  upon  the  representations  of  Cooley  and  Farwell, 
(if  indeed  they  made  any  to  him,  and  the  presumption  is,  that 
they  did  not,  in  the  absence  of  proof,  and  there  is  none  that 
they  did).  This  language  also  shows,  that  Wadsworth,  being, 
as  the  evidence  makes  him,  a  "  sharp,  shrewd  and  cautious 
business  man"  and  ever  watchful  of  his  rights  and  interests, 
examines  the  books  of  account  for  himself.  He  is  not  willing 
to  trust  to  any  one  but  himself.  In  this  he  acts  himself,  and 
reveals  his  confidence  in  his  own  "  sharpness,  shrewdness  and 
caution,"  in  business  matters.  After  he  had  finished  the  exam- 
ination of  the  books,  and  had  acquainted  himself  as  to  their 
condition — the  condition  of  the  stock  and  private  accounts  of 
his  own  and  that  of  his  partners,  he  was  "  INDUCED  BY  THEIR 

CONDITION  TO  SIGN  THE  SAID  AGREEMENT."      He  COnfeSSCS  that 

he  understood  the  condition  of  said  books  of  account,  and  that 
he  made  and  signed  the  said  agreement  on  the  basis  of  the 


139 

said  condition  of  said  books  of  account.  He  does  not  even 
pretend  that  he  relied  upon  a  statement  or  representations  of 
Cooley  and  Farwell,  but  he  went  directly  to  the  said  books 
and  ascertained  for  himself  what  was  in  them.  Neither  does 
he  pretend,  in  this  allegation  and  statement  in  his  bill,  that 
either  Cooley  or  Farwell  deceived  jhim  in  the  matter  of  the 
condition  of  the  said  books ;  but  rather,  that  he  made  a  "  mis- 
take" After  all  that  has  been  said  upon  this  matter,  it  is  found 
that  Mr.  Wadsworth  is  seeking  in  this  Court  to  be  relieved 
from  what  he  pleases  to  call  his  own  " mistake" 

But  let  us  look  a  little  more  closely  at  the  evidence  of  com- 
plainant's knowledge  of  the  said  division  of  merchandise  in 
the  ratio  of  profits,  and  of  the  matter  of  interest  upon  his  deficit 
of  capital  in  the  firm  of  Cooley,  Farwell  &  Co.  And  for  this 
purpose  we  again  call  the  attention  of  the  Court  to  complain- 
ant's evidence,  which  he  presents  through  Mr.  Spink,  marked 
"  Exhibit  A  "  to  his  deposition.  It  is  on  page  44  of  printed 
evidence,  and  is  as  follows  : 

"Exhibit  A." 

"  Chicago,  Feb'y  1st,  1862. 
"Mr.  E.  S.  Wadsworth 

"  In  Account  Cooley,  Farwell  &  Co., 

"  By  i  profits      -  $84,410.78 

"  By  Stock  paid  in  $28,842.46 

10,419.00     39,261.46 


"Dr.  $123,672.24 

"  To  i  losses  $25,000.00 

"  To  private  account  -  -       36,624.90 

"  To  interest  on  stock,  6  per  cent.  -           12,097.02  $73,721.92 

$49,721.32 

Mr.  Loiter  on  page  395,  int'y  78,  testifies,  that  this  exhibit 
"  must  have  been  made  about  January  18, 1862,  and  it  appears 
"  to  be  an  estimate  of  Mr.  Wadsworth's  condition  in  the  firm 
"  at  that  time." 

On  page  591,  int'y  64,  he  testifies,  that  "  the  credit  of  $28,- 
"  842.46  (in  said  Exhibit  A)  was  derived  from  one-fourth  of 
"  the  merchandise  on  hand  February  1st,  1857,  and  the  credit 
"of  $10,419.00  was  derived  from  collections  from  Cooley, 
"  Wadsworth  &  Co.,  No.  2."  On  page  492,  int'y  65,  he  says, 
that  "  the  item  of  $12,097.02,  charged  in  said  exhibit,  was 


140 

"  charged  on  shortage  of  stock  of  E.  S.  Wads  worth,  and  this 
"  interest  was  not  correctly  figured,  and  the  error  was  made  in 
"  Wads  worth's  favor." 

Mr.  Spink  on  page  88  cross  int'y  61,  testifies,  that  he  "  heard 
"  Mr.  Wadsworth  say,  that  it  (said  Exhibit  A)  was  a, paper  given 
"  him  by  Far  well.  Mr.  Woodbridge,  complainant's  solicitor, 
"  asked  me  before  the  examination,  how  it  compared  with  the 
"  books,  and  whether  I  could  find  at  what  date  it  was  possibly 
"  made.  I  gave  him  the  explanation  of  the  difference  between 
"  the  same  and  the  books,  and  told  him  that  the  indications 
"  seemed  to  be,  judging  from  the  amount  of  the  private  account 
"  named  therein,  that  it  had  been  made  up  about  the  20th  of 
"  January,  1862,  bearing  date  February  1,  1862.  It  is  evident 
'  from  the  books  and  this  exhibit,  that  the  same  was  made 
"  about  the  20th  of  January,  1862.  I  infer  that  the  statement 
"  or  exhibit  is  an  estimate  of  the  affairs  of  the  firm  named,  as 
"  they  would  probably  stand  on  the  1st  of  February,  1862." 

From  this  evidence,  there  cannot  be  a  doubt,  but  that  said 
"  Exhibit  A,"  was  made  the  day  before  the  dissolution  of  the 
firm  of  Cooley,  Farwell  &  Co.,  and  the  final  settlement  of  all 
copartnership  matters  was  made  one  day  later,  to-wit,  on  the 
21st  of  January,  1862." 

It  is  not  possible  that  complainant  did  not  know  of  the  divi- 
sion of  the  said  merchandise  of  the  former  firm  in  the  ratio  of 
profits,  and  of  the  said  interest  upon  the  deficit  of  capital  stock, 
when  he  made  said  agreement,  for  at  that  time  this  identical 
"^Exhibit  A,"  advertising  him  of  these  two  facts,  was  in  his 
hands.  If  there  had  been  no  agreement  to  divide  said  mer- 
chandise between  the  partners  in  the  ratio  of  profits,  and  to 
cast  interest  on  deficit  of  capital  as  aforesaid,  and  as  indicated 
in  said  Exhibit,  why  did  not  complainant,  when  he  received 
the  said  "  Exhibit  A,"  protest  against  such  division  of  the 
goods,  and  the  interest  upon  his  deficit  of  capital  stock,  from 
the  sum  of  $80,000  ?  But  instead  of  doing  so  he  admitted  the 
same  as  being  fully  in  accordance  with  his  agreement ;  and  on 
the  very  next  day  again  confirmed  said  division  and  interest 
by  entering  into  the  said  agreement  of  settlement,  and  carry- 
ing the  said  settlement  into  effect. 

Is  there  anything  unreasonable  in  the  division  of  the  said 
merchandise  in  that  manner,  when  we  consider  that  the  said 
merchandise — an  old  stock  of  goods — were  unconverted  assets, 


141 

upon  Avhich  labor,  skill,  money  and  time  must  be  expended  be- 
fore they  can  be  turned  into  money  ?  If  merchandise  are  un- 
converted assets,  (and  this  must  be  so  conceded  under  the  evi- 
dence), then  they  cannot  be  treated  as,  or  taken  to  be,  cash,  or 
as  converted  assets,  any  more  than  uncollected  or  unconverted 
notes  and  accounts  can  be.  Labor,  skill,  money  and  time  must 
be  expended  on  both  of  these  classes  of  assets  before  either 
can  be  converted  into  money ;  and  besides,  in  the  absence  of 
an  agreement  to  fix  the  value  of  either  merchandise  or  notes 
and  accounts,  there  is  no  rule  by  which  to  ascertain  their  value 
in  money.  Some  notes  and  accounts  are  more  valuable  than 
others,  and  so  of  merchandise  ;  and  some  kinds  of  both  are 
almost  valueless.  Goods  vary  in  merchantable  quality,  in  mer- 
chantable condition  and  in  merchantable  styles.  Fashions 
change,  and  markets  are  variable ;  and  a  rule  that  governs 
their  value  to-day  may  not  apply  to-morrow  or  next  week.  It 
is  no  more  nor  less  so  with  wheat  and  corn  and  beef  and  pork, 
except  these  latter  articles  do  not  go  out  of  fashion,  but  they 
may  become  stale. 

When  the  said  firm  of  C.  N.  Henderson  &  Co.  dissolved  in 
June,  1855,  Mr.  Helm  testifies,  that  in  the  division  of  the  as- 
sets between  the  partners,  Mr.  Farwell  preferred  the  notes  and 
accounts  to  the  merchandise,  and  therefore  Mr.  Henderson 
took  his  proportion  of  the  assets  in  the  stock  of  goods,  and 
Cooley,  "Wadsworth  and  Co.  their  proportion  in  notes  and  ac- 
counts. 

But  it  may  be  urged  that  the  profit  and  loss  account  of  the 
firm  of  Cooley,  Farwell  &  Co.  was  larger  than  the  said  esti- 
mate contained  in  said  "  Exhibit  A."  By  reference  to  the 
testimony  of  Mr  Leiter,  on  page  582,  Int.  59,  it  will  be  seen 
that  the  amount  charged  to  profit  and  loss  was  $140,015.29  ; 
but  on  page  591,  cross-int.  42,  he  corrects  this  statement  by 
saying  that  this  amount  included  the  losses  of  the  firms  of 
Cooley,  Wadsworth  &  Co.,  No.  2,  and  Cooley,  Farwell  &  Co. 
From  this  explanation,  it  is  seen  that  the  said  estimate  in  said 
Exhibit  A  was  about  right. 

Complainant  introduced  said  "  Exhibit  A"  to  prove  that  there 
is  a  difference  between  his  account  as  per  the  books,  and  said 
exhibit.  It  will  be  remembered  that  the  books  were  not  made 
up  until  the  1st  of  February,  1862,  and  that  this  estimate  was 
made  about  ten  days  before  that  time.  It  will  also  be  remem- 


142 

bered  that  interest  on  the  private  account  of  Wadsworth  was 
not  included  in  this  exhibit,  nor  were  the  salaries  of  the  clerks 
made  up  at  that  time  ;  nor  was  the  interest  account  on  money 
loaned  by  the  firm,  made  up  ;  nor  were  the  exchange  and  clerk 
hire  and  other  expenses  made  up  fully  at  that  time.  The  books 
as  made  up  and  presented  in  evidence,  embrace  all  these  items. 
These  were  items  which  said  Exhibit  did  not  pretend  to  em- 
brace, and  yet  they  were  such,  that  he  could  not  have  been  ig- 
norant of  them.  By  adding  these  items  to  said  "  Exhibit  A," 
and  it  substantially  agrees  with  the  books. 

The  interest  on  his  private  account  was  -  $3,651.90 

Amount  due  on  salaries  $16,056.38 

Interest  on  money  loaned  1,159.66 

Expenses  not  posted  3,154.40 


$20,370.44— 
One-fourth  to  complainant,  to  wit,  -       $5,092.61 


Making  the  amount  of  -       $8,744.51 

When  this  is  added  to  the  said  statement  or  "  Exhibit  A,"  then 
it  and  the  books  substantially  agree,  and  more  nearly  than  or- 
dinary guessing  could  make  them.  (See  books  of  account  for 
the  above  items.)  This  shows  how  scrupulously  exact  the 
parties  were  in  making  up  the  said  estimate  of  losses  of  the 
said  firm  of  Cooley,  Farwell  &  Co.,  contained  in  said  "Exhibit 
A."  And  this  makes  the  grand  balance  of  complainant  in 
this  firm,  when  added  to  said  "  Exhibit  A,"  agree  with  his 
grand  balance  as  shown  by  the  books  which  were  made  up  ten 
days  afterwards. 

It  may  be  asked,  how  could  Mr.  Wadsworth  understand 
said  books  of  account  when  some  of  the  items  of  account  were 
not  in  fact  made  up  until  the  1st  of  February  following  ?  This 
is  easily  answered.  The  stock  and  private  account  of  the 
partners  were  all  that  was  needful  for  them  to  investigate  and 
understand,  and  these  being  so  short  they  were  understood  at 
a  glance,  or  by  a  mere  statement  of  the  items  that  made  them 
up  ;  and  these  were  already  upon  the  books.  And  beside,  an 
inventory  had  been  taken  of  the  merchandise  and  assets,  and 


143 

their  bills  payable  showed  them  the  amount  of  the  firm's  liabil- 
ity, and  these  facts  were  all  that  was  necessary  for  the  part- 
ners to  understand  the  true  condition  of  the  firm,  and  of  their 
relative  interests  and  conditions  therein.  But  Jthe  said  "Ex- 
hibit A"  to  Mr.  Spink's  deposition,  shows  that  the  partners 
Avent  further  than  this  in  their  said  examination  and  consider- 
ation ;  for  this  proves  that  they  even  went  so  far  as  to  make 
an  estimate  of  the  probable  loss  upon  the  assets  of  the  firm  of 
C.,  F.  &  Co.,  and  placed  this  probable  loss  at  $100,000.  The 
division  of  the  merchandise  in  the  ratio  of  capital,  and  the 
matter  of  interest  upon  the  deficit  of  cash  capital  stock  of  each 
partner  in  the  firm  of  C.,  F.  &  Co.,  from  that  of  the  several 
amounts  specified  in  the  original  copartnership  agreement, 
were  both  considered  and  determined,  for  these  are  included 
in  the  said  estimate,  which  Mr.  Wadsworth  produced  in  and 
by  said  "Exhibit  A."  In  fact,  the  partners  took  everything 
that  was  before  them  for  consideration,  as  being  already  made  up 
and  entered  in  the  books.  The  business  of  the  firms  of  C.,  W. 
&  Co.,  Nos.  1  and  2,  were  already  settled,  the  merchandise  of 
those  firms  was  divided  and  disposed  of  upon  the  books  of  those 
firms ;  and  the  basis  of  all  entries  not  made  in  the  books  of  C., 
F.  &  Co.,  was  settled  and  well  understood,  and  they  were 
taken  and  considered  by  the  partners  as  already  entered  in  the 
books,  although  the  actual  entries  were  not  to  be  made  until 
the  first  day  of  February  following.  This  fact  of  itself,  more 
than  anything  else,  shows  that  the  condition  of  the  said  ac- 
counts, and  of  the  firm  of  C.,  F.  &  Co.  were  most  thoroughly 
canvassed  and  understood  at  the  time  by  Wadsworth;  and 
hence  he  makes  the  statement  in  his  bill  of  complaint,  on  page 
26,  that  the  condition  of  said  books  induced  him  to  make  and 
sign  the  said  agreement ;  and  it  was  and  is  the  said  division  of 
the  merchandise  of  the  2d  firm  of  C.,  W.  &  Co.,  in  the  ratio 
of  profits  between  the  partners,  and  the  casting  of  interest 
upon  the  deficit  of  Mr.  Wadsworth's  capital  in  the  firm  of  C., 
F.  &  Co.  from  $80,000,  that  he  complains  of,  and  these  are 
both  in  said  "  Exhibit  A,"  which  shows  most  conclusively  that 
he  knew  all  about  these  two  matters,  and  that  his  pretended 
mistake  was  just  Avhat  he  told  Mr.  Dunham  it  was,  viz :  that 
he  had  made  a  mistake  in  retiring  from  business  at  that  par- 
ticular time. 


144 

SEVENTH    POINT. 

It  is  charged  that  the  firm  of  Cooley,  Farwell  &  Co.  is  but 
the  continuation  of  the  firm  of  Cooley,  Wadsworth  &  Co., 
No.  2.  Now  suppose  for  the  sake  of  the  argument,  that  we 
treat  the  said  firm  of  Cooley,  Farwell  &  Co.  as  but  the  con- 
tinuance of  the  2d  firm  of  C.,  W.  &  Co. — differing  only  in  the 
value  of  the  time  or  service-capital  of  Cooley  &  Farwell,  men- 
tioned in  the  said  articles  of  copartnership  of  the  said  firm  of 
C.,  F.  &  Co. — and  then  without  said  extra  capital.  What 
would  be  the  difference  between  that  of  the  books  under  the 
settlement  made  by  the  said  partners  on  the  21st  of  January, 
1862,  and  that  of  treating  the  firm  of  C.,  F.  &  Co.  as  the 
continuance  of  the  firm  of  C.,  W.  &  Co.,  as  stated  in  cross- 
int,  119  to  Mr.  Spink's  testimony?  The  difference  on  the 
hypothesis  of  the  1st  part  of  the  question,  Mr.  Spink,  on  page 
140,  testifies  as  follows  : 

"  The  balance  at  the  credit  of  Wadsworth  would  be  $6.66 
"  greater  than  that  shown  by  the  books.  The  balance  at  the 
"  credit  of  Cooley  would  be  $781.87  greater  than  that  showu 
by  the  books.  The  balance  at  the  credit  of  Farwell  would  be 
$788.53  smaller." 

On  the  2d  part  of  the  question  he  testifies  "  that  Wads- 
"  worth's  balance,  as  compared  with  the  books,  would  be 
"  $1,193.34  smaller.  That  of  Cooley's,  $781.87  greater.  That 
"of  Farwell's,  $411.47  greater."  See  exhibit  No.  10,  pages 
173-4. 

In  the  testimony  of  Mr.  Spink  we  have  presented  distinct 
computations  upon  as  many  distinct  hypothesis,  in  order  to 
show  that  the  said  agreement  of  final  settlement,  at  the  time 
it  was  made,  was  in  fact  a  fair  one  to  Wadsworth,  and  that  it 
was  no  more  than  justice  to  Cooley  and  Farwell. 

We  will  call  the  attention  of  the  Court  to  some  of  these 
hypothetical  illustrations : 

The  three  first  are  upon  the  basis  that  the  partners  in  the 
firm  of  C.,  F.  &  Co.  were  bound  to  furnish  capital  as  follows  : 
Cooley's  cash  and  time  capital,  $160,000;  Farwell's  cash  and 
time  capital,  $80,000 ;  Wadsworth  cash  capital,  and  no  time 
capital,  $80,000. 

1st.     Upon  the  basis  of  Mr.  Spink's  computations  in  chief. 


145 

2d.  Upon  the  basis  of  the  agreements  of  the  partners,  as 
evidenced  by  the  books  and  articles  of  copartnership,  taken 
together.  And 

3d.  Upon  the  basis  of  Mr.  Spink's  computations  in  chief— 
charging  the  whole  of  the  Wabash  avenue  building  account  to 
Cooley,  and  leaving  out  the  $5,000  loan  to  Farwell. 

And  Mr.  Spink,  in  answer  to  cross  180,  on  page  217,  presents 
his  answer,  in  which  he  states  the  pro  rata  amount  of  capital 
each  partner  would  have,  under  each  hypothesis,  and  what  the 
balances  of  interest  would  be,  as  follows  : 

Under  the  1st  the  proportions  of  capital  would  stand  : 
Feb.  1,  '57,  Cooley  51£    Wadsworth  19    Farwell  29f  per  cent. 
Feb.  1, '58,       "       50  "         22  "       28         " 

Feb.  1,  '59,       " 
Feb.  1, '60,       " 

Feb.  1, '61,       "       53  "         20| 

Feb.  1,  '62,       "        52f  "         21J         "       26         " 

Under  the  2d  they  would  stand  as  follows : 
Feb.  1,  '61,  Cooley  50    Wadsworth  12£  Farwell  37f  per  cent. 
Aug.  1,'59,  to 
July  1,  '62,  Cooley  51f  "         15£         "       33         " 

Under  the  3d,  they  would  stand  as  follows : 
Feb.  1,  '57,  Cooley  51|    Wadsworth  19     Farwell  29f  per  cent. 
Feb.  1, '58,       "        48  "         22  "         30         " 

Feb.  1,  '59,       "        48£  "         2l£  "         30         " 

Feb.  1, '60,       "        50  "         20  "         30         " 

Feb.  1,'  61,       "        50  "         20  "         30         " 

Feb.  1,  '62,       "       50  "         20  "         30         " 

Upon  the  4th  hypothesis,  that  the  firm  of  C.,  W.  &  Co., 
No.  2,  was  continued  until  the  1st  of  February,  1862,  Mr. 
Spink  testifies,  on  page  139,  cross  118,  that  Wadsworth,  in 
order  to  equalize  his  stock  account  with  that  of  Farwell's, 
would  have  to  pay  Farwell  interest  on  $26,000. 

Upon  the  5th  hypothesis,  as  to  what  was  the  ratio  of  capital 
and  profits  between  the  partners,  and  as  between  Cooley,  of 
one  part,  and  Farwell  and  Wadsworth,  of  the  other  part — 
leaving  out  the  private  accounts — Mr.  Spink  testifies,  on  pages 
138-9,  cross  117,  that  Cooley  had  53  per  cent.;  Wadsworth 
and  Farwell  together,  47  per  cent.;  and  as  between  Wads- 
worth  and  Farwell,  Wadsworth  had  61  per  cent,  and  Farwell 
39  per  cent. — thus  showing,  upon  their  own  hypothesis,  that 

19 


146 

Wadsworth  did  not  stand,  and  could  not  have  stood,  relatively 
as  well  as  Mr.  Fanvell.  To  do  so,  he  must  have  had  twioo  . 
tne  amount  °f  capital  to  that  of  Farwell — and  he  was  far  short 
of  this.  In  this  calculation  the  private  accounts  were  left  out, 
and  Wadsworth's  private  account  was  much  larger  than  his 
partners',  relatively. 

Upon  the  6th  hypothesis,  that  the  merchandise  sold  to  Coo- 
ley  &  Farwell — leaving  out  those  sold  after  January  9  and  up 
to  February  1,  1862 — were  charged  to  them  at  20  per  cent, 
above  their  cash  value,  and  that  the  profit  and  loss  account, 
on  the  final  division,  was  to  be  charged  with  such  sum  as 
would  leave  the  remaining  assets  of  the  same  of  relative  value, 
to  be  divided  pro  rata,  according  to  the  balance  or  amount 
due  to  each  on  the  1st  day  of  February,  1862 ;  what  would  be 
the  relative  losses  of  each  partner,  as  compared  with  what 
they  would  have  severally  sustained  under  the  original  articles 
of  copartnership  ? 

In  answer  to  this  Mr.  Spink,  on  page  228  B,  int.  3,  testifies 
that,  on  the  hypothesis,  Cooley  Avould  have  borne  a  loss  of 
$75,988.24  ;  on  the  bases  of  the  articles,  $73,169.12 — making 
a  difference  of  only  $2,319.12.  On  the  hypothesis,  Wads- 
worth  would  have  borne  a  loss  of  $42,000 ;  on  the  basis  of  the 
articles,  $36,584.56 — making  a  difference  of  only  $5,515.44. 
On  the  hypothesis,  Farwell  would  have  borne  a  loss  of  $28,250  ; 
on  the  basis  of  the  articles,  $36,584.56 — making  a  difference 
of  only  $8,834.56. 

The  small  differences  between  the  partners  as  we  have  shown 
them  to  be,  upon  the  said  agreement  of  settlement  and  the  said 
several  hypothesis,  is  hardly  worth  contending  for ;  but  it 
shows  that  Wadsworth  well  understood  the  true  condition  of 
the  firm  and  the  relative  standing  of  the  partners  in  their  stock 
and  private  accounts.  The  amount  of  this  difference  is  so 
small,  when  we  consider  the  great  consideration  given  by 
Cooley  and  Farwell  for  it,  in  assuming  all  responsibility  of  pay- 
ing over  $400,000  of  debts  with  the  assets,  and  the  release  of 
Wadsworth  therefrom,  it  is  absolutely  insignificant.  The  de- 
fendants do  not  care  so  much  about  the  amount  involved  in 
these  differences,  but  they  do  care  about  the  grave  charges 
against  them  contained  in  complainant's  bill  of  complaint. 
Money  is  of  but  little  consideration  to  a  man  when  put  in  com- 


147 

petition  with  his  honor  and  good  name,  and  especially  when  he 
has  a  requisite  amount  of  money  independent  of  any  such 
efforts. 

It  is  these  insolent,  unmanly  and  false  charges  of  deception 
that  brings  Cooley  and  Farwell  into  this  Court  to  defend  their 
hard-earned  business  reputation,  not  only  in  this  city  and  the 
Northwest,  but  in  the  eastern  markets  of  our  own  and  foreign 
countries.  They  cannot  consent  to  sit  down  and  quietly  sub- 
mit to  such  wholesale  assaults  upon  their  characters  for  hon- 
esty and  truth.  And  a  man  that  would,  is  not  worthy  of  hav- 
ing a  character.  In  whatever  light  we  may  view  this  settle- 
ment, and  especially  when  viewed  from  the  stand  point  which 
the  partners  severally  looked  upon  the  transaction,  and  in  view 
of  the  situation  and  condition  of  our  country,  both  civil  and 
military,  at  that  time,  it  was  a  fair  adjustment  of  the  matters 
between  the  said  partners,  and  that  the  benefits  and  advan- 
tages to  be  had  and  enjoyed  by  the  complainant,  as  matters 
then  stood  and  appeared,  were  quite  as  great  as  that  to  either 
Cooley  or  Farwell. 

EIGHTH   POINT. 

Who  were  the  partners  in  the  said  firm  of  C.  N.  Henderson 
&Co.? 

It  would  seem  that  sufficient  has  already  been  said  upon  this 
question  in  our  review  of  complainant's  bill  of  complaint,  under 
the  "  3d  noted  allegation,"  (see  ante  pages,  from  17  to  39  in- 
clusive,) to  which  we  refer  the  Court  for  the  evidence  upon 
this  point  and  the  remarks  submitted  in  that  connection.  But 
we  desire  to  call  the  especial  attention  of  the  Court  to  the  at- 
tempt to  charge  fraud  upon  Cooley  and  Farwell,  in  the  sale  of 
the  interests  of  the  firm  of  Cooley,  Wadsworth  &  Co.  in  the 
remaining  assets  of  the  said  firm  of  C.  N.  Henderson  &  Co. 
to  Wadsworth,  on  or  about  the  1st  of  March,  1859.  The  posi- 
tion assumed  by  complainant  in  his  said  bill,  as  to  that  occu- 
pied by  Farwell  in  that  matter,  and  the  part  which  complain- 
ant claims  Farwell  took  in  negotiating  said  sale  and  transfer, 
are  not  consistent  one  with  the  other. 

1st.     He  claims  that  Farwell  never  was  a  partner  in  that 
firm. 

2d.     That  Cooley  &  Wadsworth,  and   not   Cooley,  Wads- 
worth  &  Co.,  were  the  only  partners  in  that  firm. 


148 

3d.  He  then  alleges,  that  Cooley  and  Farwell  sold  to  him, 
by  false  representations,  the  interest  of  himself  and  Cooley  in 
the  assets  of  C.  N.  H.  &  Co. 

He  does  not  even  claim  that  either  Charles  N.  Henderson  or 
Cooley,  or  himself,  ever  employed  Farwell  as  his  or  their  agent, 
attorney  in  fact,  or  otherwise  to  act  for  them  or  either  of  them ; 
yet  he  claims  that  Farwell,  having  no  manner  of  interest  in 
said  assets,  and  being  wholly  an  outsider,  assumed  an  interest 
therein,  and  to  be  a  member  of  said  firm ;  and  notwithstand- 
ing his  assumptions  were  mere  assumptions,  he,  the  complain- 
ant, recognized  them  as  facts,  and  treated  Farwell  in  that  mat- 
ter as  though  he  was  a  partner,  and  that  complainant,  being 
so  completely  under  this  hallucination,  that  he  even  signed 
papers  and  receipts,  written  by  himself,  recognizing  Farwell  as 
one  of  the  partners  in  the  said  firm  of  C.  N".  Henderson  &  Co. 
In  this  manner  was  the  complainant  (as  he  says,)  imposed 
upon,  and  made  to  believe  against  his  absolute  knowledge  of 
facts,  that  Farwell  was  a  partner  in  that  firm,  and  in  this  way 
was  this  fraud  committed  upon  him.  If  such  was  his  imbecil- 
ity and  hallucination  at  that  time,  his  friends  most  certainly 
have  done  him  a  great  wrong  and  injury,  for  neglecting  to  put 
trustees  over  him  in  the  management  of  his  estate. 

A  second  charge  of  fraud,  or  attempted  charge  of  fraud,  in 
connection  with  the  said  sale  and  transfer  of  the  said  remain- 
ing assets  of  C.  N.  H.  &  Co.,  on  page  15  of  bilf,  is,  that 
Cooley  and  Farwell  represented,  at  the  time  of  said  sale  and 
transfer,  that  complainant's  account  was,  relatively,  overdrawn, 
has  no  support  from  the  evidence. 

Upon  this  point  we  desire  to  refer  the  Court  to  the  evidence, 
and  our  remarks  submitted  therewith,  under  the  3d  and  10th 
noted  allegations  of  bill,  ante  pages  from  17  to  50,  and  from 
78  to  89. 

From  the  examination  of  this  testimony,  it  will  be  seen  that 
there  is  no  evidence  to  sustain  either  of  these  pretended  frauds. 
The  transcript  from  the  Probate  Court,  introduced  to  show 
that  that  proceeding  ignored  the  partnership  relation  of  Far- 
well  to  the  firm  of  C.  N.  H.  &  Co.,  amounts  to  nothing,  as  we 
have  before  said,  and  for  the  reason  that  Farwell  was  not  a 
party  to  that  proceeding,  nor  was  the  question  as  to  who  were 
the  partners  before  that  Court,  therefore,  that  proceeding  can- 
not be  binding  upon  him. 


149 

The  law  of  partnerships  is  so  clearly  defined,  that  under  the 
testimony,  there  is  no  doubt  upon  the  question,  as  to  the  fact 
of  Farw ell's  being  a  partner  in  the  said  firm  of  C.  N.  Hender- 
son &  Co.  That  he  had  an  interest  in,  or  owned  a  part  of  the 
capital  of  that  firm  there  can  not  be  any  doubt.  The  testimony 
states  unequivocally,  that  Charles  N.  Henderson  and  Cooley, 
Wadsworth  &  Co.  paid  in  and  made  up  the  capital  stock  of 
that  firm ;  and  that  Farwell  was  a  partner  in  the  said  firm  of 
Cooley,  "Wadsworth  &  Co.  This  fact  then  is  established  by 
the  proof  beyond  all  question.  That  Farwell  had  an  interest 
in,  and  received  a  part  of  the  profits,  with  the  full  knowledge 
and  consent  of  all  the  partners,  of  both  of  said  firms,  is  equally 
certain.  As  to  the  fact  of  his  receiving  a  portion  of  said  pro- 
fits, there  is  no  disagreement.  The  only  question  is,  was  he 
entitled  to  it  ?  If  he  was  a  partner  at  the  time  in  the  said  firm 
of  Cooley,  Wadsworth  &  Co.,  and  if  said  firm  was  the  partner 
of  Charles  N.  Henderson  in  the  firm  of  C.  N.  H.  &  Co.,  then 
there  can  be  no  doubt  as  to  his  right  to  receive  his  said  share 
or  proportion  of  said  profits  and  capital  in  the  manner  he  did 
and  was  allowed  to.  That  he  had  this  right  no  one  ought  to 
doubt,  when  we  remember  that  the  several  partners  in  all  of 
their  transactions  of  business — in  commencing  suits  at  law  and 
in  defending  suits,  recognized  him  to  be  a  partner  in  that  firm. 
Not  only  so,  but  when  we  remember,  that  the  testimony 
informs  us,  that  Charles  N.  Henderson  and  Charles  M.  Hen- 
derson and  John  V.  Farwell  in  commencing  suits  in  the  name 
of  said  firm,  upon  their  several  oaths,  affirm,  during  the  exist- 
ence of  said  firm,  that  he  was  a  partner  therein,  and  when  we 
remember  that  one  of  the  said  solicitors  in  this  suit  (John 
Woodbridge,  jr.)  drew  an  affidavit  and  commenced  a  suit  in 
one  of  the  Courts  of  Cook  County,  for  and  in  behalf  of  said 
firm,  in  the  name  of  Charles  N.  Henderson,  Francis  B.  Cooley, 
Elisha  S.  Wadsworth  and  John  V.  Farwell,  as  plaintiffs  and  as 
partners  in  that  firm.  Not  only  so,  but  when  the  final  settle- 
ment of  this  firm  is  had,  Farwell  is  recognized  by  Wadsworth 
himself  as  a  partner,  by  treating  with  him  in  his  negotiations 
in  the  purchase  of  the  remaining  interests  of  Cooley,  Wads- 
worth  &  Co.  in  the  remaining  assets  of  the  said  firm  of  C.  N. 
Henderson  &  Co.,  and  signs  the  agreement  of  dissolution  with 
Farwell ;  not  only  so,  but  the  books  of  both  of  the  said  firms 
in  all  the  entries  relative  to  the  capital  stock  and  the  division 


150 

of  the  profits  contained  the  most  undoubted  evidence  that 
Farwell  was  absolutely  a  partner.  And  it  will  be  remembered 
in  this  connection,  that  Wadsworth,  in  executing  receipts  and 
orders  to  release  mortgages  in  behalf  of  the  said  firm  of  C.  N. 
Henderson  &  Co.,  after  he  had  purchased  the  said  interest  of 
Cooley,  Wadsworth  &  Co.  in  said  firm's  assets,  recognized 
Farwell  as  a  partner. 

As  to  what  constitutes  a  partnership  we  will  examine  the 
law  governing  such  matters.  In  the  case  of  Berthold  vs. 
Goldsmith,  24  Howard  R.  536,  the  Court  says,  "Where- 
"  ever  there  is  a  community  of  interests  in  capital  stock, 
"  and  also  a  community  of  interest  in  profit  and  loss,  then  it  is 
"  a  clear  case  of  actual  partnership,  both  inter  sese  and  of 
"  course  as  to  third  persons ;  all  the  decided  cases  agree  that 
"  it  is  seldom  or  never  essential  that  both  these  ingredients 
"  should  concur  in  order  to  establish  that  relation.  A  commu- 
"  nity  of  interest  in  the  property  without  regard  to  profits  will 
"  almost  necessarily  lead  to  the  conclusion  that  partnership 
"  existed,  and  under  some  circumstances  that  conclusion  will 
"  follow,  although  sale  of  the  property  for  joint  interest  may 
"  not  be  contemplated.  On  the  other  hand,  it  is  equally  clear 
"  that  there  may  be  such  a  community  of  interests  in  the  pro- 
" fits  without  regard  to  loss,  and  without  any  community  of 
"  interest  whatever  in  the  property  as  will  establish  that 
"  relation."  See  also  Wood  etal.  vs.  Valetta  etal.,  7  Ohio 
State  R.  172. 

In  the  case  of  Bobbins  vs.  Laswell  27  Ills.  365,  the  Court 
says,  "  When  by  agreement  persons  have  a  joint  interest  of 
"  the  same  in  a  particular  adventure,  they  are,  as  between  them- 
"  selves,  partners,  although  some  contribute  money  alone  and 
"  others  labor  alone.  If  parties  agree  to  share  profits  they  are 
"  partners  as  to  such  profits.  A  written  agreement  as  to  divid- 
"  ing  profits  may  be  extended  tacitly  by  the  mutual  under- 
"  standing  of  the  parties,  or  by  their  conduct  in  relation  to  it, 
"  (on  page  369)  that  the  facts  and  circumstances  or  conduct 
"  of  the  parties  speak  louder  than  words.  As  beticeen  them- 
"  selves  we  think  there  can  be  no  doiibt  of  a  partnership.  It 
"  seems  to  be  well  settled,  that  when  by  agreement  persons 
"  have  a  joint  interest  of  the  same  nature  in  a  particular  adven- 
"  ture,  they  are  partners  inter  se,  although  some  may  contri- 
"  bute  money  and  others  labor.  The  Court  cites  4  Barn  & 


151 

"  Co."  Story  on  Part,  sec.  15,  Dobbs  vs.  Halsey,  16  John 
R.  34.;  see  also  Brown  vs.  Higinbotham,  Leigh,  Fa.,  R.  583. 
This  case  shows  many  distinctive  principles  of  the  law  of  part- 
nerships. 

Before  closing  our  remarks  upon  this  point  we  desire  to  call 
the  attention  of  the  Court  to  another  feature  in  the  transaction 
of  the  sale  of  said  remaining  interest  of  the  said  firm  of  C.,  W. 
&  Co.,  in  the  assets  of  the  said  firm  of  C.  N.  H.  &  Co. 

1st.  Wadsworth  buys  the  said  interest  of  C.,  W.  &  Co., 
and  arranges  for  the  payment  of  the  same  with  said  firm. 

2d.  At  that  time  the  estate  of  the  said  Charles  N.  Hender- 
son, then  deceased,  owed  the  firm  of  C.  N.  Henderson  &  Co., 
$7,470.59,  according  to  the  books  of  that  firm  and  the  testi- 
mony of  Charles  M.  Henderson.  See  evidence  page  334 
cross  107. 

3d.  The  said  estate  likewise  sell  and  transfer  to  Wads- 
worth  its  interest  in  the  said  assets  for  the  consideration  of 
$13,000. 

4th.  Then  Wadsworth  and  said  estate  immediately  there- 
after by  mutual  agreement  settle  by  arbitration  the  said  indebt- 
edness of  said  estate  to  the  said  firm  of  nearly  $8,000,  for  the 
small  consideration  of  $939.15. 

5th.  Wadsworth  thereupon  executes  a  receipt  for  that  sum 
of  money  to  the  administrator  of  said  estate,  written  by  his  own 
hand  and  signed  by  himself,  which  is  in  words  and  figures  fol- 
lowing : 

"CHICAGO,  November  8,  1859. 

"Received  of  Horace  C.  Gillette,  Administrator  of  the  es- 
"  tate  of  C.  N.  Henderson,  nine  hundred  and  thirty-nine  dol- 
"  lars  and  fifteen  cents,  which  is  in  full  of  settlement  and  pur- 
"  chase  of  the  assets  of  the  firm  of  C.  N.  Henderson  &  Co., 
"  which  expired  in  1855,  being  in  full  of  all  demands  whatso- 
"  ever. 

"CO-OLE Y,  WADSWORTH  &  CO." 

(See  evidence  on  page  515.) 

6th.  On  or  about  the  14th  of  April,  1864,  nearly  five  years 
afterwards,  and  nearly  a  year  after  the  filing  of  complainant's 
bill  of  complaint,  and  after  the  above  receipt  was  called  for 
by  Mr.  Farwell  of  the  said  administrator,  and  during  the  cross- 
examination  of  the  witness  Burke,  this  receipt  was  exchanged 
for  the  following : 


"Received,  this  8th  day  of  November,  1859,  of  Horace  C. 
"  Gillette,  administrator  of  the  estate  of  C.  N.  Henderson,  de- 
"  ceased,  nine  hundred  and  thirty-nine  dollars  and  fifteen  cents, 
"  in  full  of  award  of  Albert  Keep,  Wm.  E.  Doggett  and  James 
"  McKindley,  arbitrators  appointed  to  adjust  the  accounts  of 
"  the  late  firm  of  C.  N.  Henderson  &  Co.,  to  find  the  amount 
"  due  Cooley  and  Wadsworth  from  the  estate  of  C.  N.  Hen- 
"  derson,  upon  settlement  of  the  affairs  of  said  firm.  I  accept 
"  the  aforesaid  amount  in  full  of  all  claims  upon  said  estate  on 
"  account  of  said  firm.  The  firm  of  C.  N.  Henderson  &  Co. 
"  consisting  of  C.  N.  Henderson,  Francis  B.  Cooley  and  Elisha 
"  S.  Wadsworth,  which  commenced  A.  D.  1851,  and  expired 
"  in  1855. 

"  E.  S.  WADSWORTH, 
"Assignee  of  the  interests  of  Cooley  &  Wadsworth." 

This  substitution  was  on  the  14th  April,  1864. 
(See  evidence,  page  520.) 

The  testimony  of  Charles  G.  Cooley  and  Horace  C.  Gillette, 
the  said  administrator,  reveals  the  fact  that  this  last  receipt 
was  written  by  John  Woodbridge,  Jr.,  Sol.  for  complainant, 
some  time  during  the  taking  of  the  testimony  of  said  witness 
Burke,  and  after  Mr.  Farwell  called  upon  both  Gillette  and 
said  C.  G.  Cooley  for  the  first  receipt  above  set  forth.  (See 
evidence,  pages  515  to  529.)  The  said  last  and  substituted  re- 
ceipt, upon  its  very  face,  bears  the  marks  of  being  fixed  up  by 
this  skillful  lawyer,  but  in  disposing  of  the  first  receipt  and 
substituting  the  last  in  its  place,  both  Wadsworth  and  his  said 
attorney  forgot  another  paper  which  said  Wadsworth  filed  in 
the  said  Probate  Court,  in  connection  with  the  matters  of  the 
said  estate,  which  is  in  words  and  figures  as  follows  : 

"  The  estate  of  C.  N.  Henderson  &  Co.  to  Cooley,  Wads- 
"  worth  &  Co.,  1859,  March  31  To  903,03. 

"  The  above  903,03,  is  the  balance  as  appears  from  papers 
"  per  arbitration." — BurJce. 

"  Received  of  Horace  C.  Gillette,  the  sum  of  nine  hundred 
"  and  thirty-nine  dollars  and  fifteen  cents,  in  full  of  Judgment 
"  vs.  the  estate  of  C.  N.  Henderson. 

"  Nov.  8,  1859.  E.  S.  WADSWORTH." 

(See  evidence,  page  527.) 


153 

Complainant  and  his  said  attorney  also  forgot,  at  the  said 
time  when  they  substituted  the  said  last  receipt  in  place  of  the 
first,  that  complainant,  on  the  29th  of  January,  1863,  had  ac- 
knowledged that  Far  well  was  a  partner  in  the  firm  of  C.  N. 
&  Co.,  by  executing  the  following  orde;- : 

"  CHICAGO,  January  29,  1863. 

"Simeon  Farwell, — You  will  release  the  mortgage  from 
"  James  M.  Kidd  to  you  for  our  benefit. 

COOLEY,  WADSWORTH  &  CO., 
E.  S.  WADSWORTH,  for 

C.  N.  Henderson  &  Co." 

(See  evidence,  page  224,  Exhibit  No.  13.) 
These  were  sad  mistakes  of  both  complainant  and  his  said 
attorney.  They  have  doubtless  found  it  exceedingly  difficult 
to  manufacture  testimony,  and  at  the  same  time  make  it  con- 
sistent and  harmonious  Avith  facts  that  have  already  transpired, 
and  which,  in  their  haste  and  flutter  of  mind,  were  attendant 
upon  such  efforts,  and  thus  the  foot-prints  of  fraud  are  readily 
discovered  on  their  part. 

After  all  this  evidence,  and  after  having  deliberately  thrown 
away  the  said  sum  of  $7,470.50,  which  said  sum  said  estate 
was  indebted  to  the  firm  of  C.  N.  II.  &  Co.,  for  the  paltry  sum 
of  $939.15,  the  complainant  comes  into  this  court  and  asks  it 
to  give  him  the  opportunity  to  get  it  back  out  of  the  defend- 
ants, Cooley  and  Farwell.  Contemplate  for  a  moment  the  cool 
audacity  of  such  a  prayer  to  a  court  of  equity,  under  such  a 
state  of  facts. 

It  may  be  said  that,  though  Farwell  was  a  partner  in  this 
firm,  the  said  settlement  of  the  matters  of  C.  N.  H.  &  Co. 
should  be  set  aside  on  the  ground  that  Wadsworth  was  de- 
ceived as  to  the  value  of  the  assets.  There  is  no  evidence 
showing  that  he  was  deceived,  or  that  he  did  not  have  all  re- 
quisite knoAyledge  upon  that  matter.  The  evidence  does  show, 
however,  that  when  he  purchased  the  interest  of  C.,  W.  & 
Co.  therein,  he  acted  solely  upon  his  own  judgment,  and  that 
he  took  pains  before  his  purchase,  to  inform  himself  in  regard 
to  the  value  of  said  assets.  On  page  308,  cross  31  and  32,  C. 
M.  Henderson  testifies  that  "  said  assets  consisted  principally 
of  notes  and  accounts,  and  that  lie,  (Wadsworth),  asked  his 
opinion  of  their  value,  or  of  individual  ones."  If  a  court 
20 


should  attempt  to  set  aside  or  reform  every  agreement  made, 
for  the  reason  that  one  of  the  parties  to  the  same  did  not  ex- 
ercise wise  judgment,  or  for  the  reason  that  one  of  the  parties 
was  mistaken  in  his  judgment,  it  would  find  no  lack  of  employ- 
ment at  least.  But  the  main  reason  urged  why  this  transac- 
tion should  be  set.  aside,  is,  that  the  said  assets  being  princi- 
pally notes  and  accounts,  Mr.  Wadsworth  did  not  realize  from 
them  as  much  as  he  expected.  What  his  expectations  were  in 
that  regard  does  not  appear,  either  by  his  bill  or  from  the  evi- 
dence. How  his  expectations  should  have  been  very  great, 
judging  from  his  mode  of  treating  said  assets,  is  as  great  an 
enigma  as  is  his  bill  of  complaint ;  for  it  does  not  appear  that 
he  made  the  slightest  effort  to  collect  or  secure  the  collection 
of  said  assets. 

When  Mr.  Wadsworth  purchased  them,  he  was  a  partner  in 
the  boot  and  shoe  trade  with  C.  M.  Henderson  and  had  been 
for  some  time.  The  assets  were,  at  the  time,  and  had  been 
since  the  decease  of  C.  N.  Henderson,  in  the  possession  of 
Wadsworth  and  C.  M.  Henderson.  They  were  the  successors 
of  C.  N.  H.  &  Co.,  and  were  doing  business  in  the  same  place 
under  the  firm  name  of  C.  M.  Henderson  &  Co.  Mr.  Burke 
was  their  clerk.  Let  us  see,  from  the  testimony,  what  efforts 
Mr.  Wadsworth  put  forth  to  collect  said  assets. 

Mr.  Burke,  on  page  244,  int.  7,  testifies  that,  "  I  have  had 
control  of  them  (said  assets)  since  the  spring  of  1859.  I  have 
received  moneys  in  settlement  of  claims,  and  have  conducted 
the  usual  correspondence  in  relation  to  claims.  (Int.  8.)  Prior 
to  this,  C.  N.  Henderson  had  control  of  them." 

On  page  252,  cross-int'ys  22  and  23,  he  says  :  "  I  received 
said  assets  from  Elisha  S.  Wadsworth.  At  this  time  he  (Wads- 
worth)  wished  me  to  take  charge  of  them  and  do  the  best  I 
could  with  them." 

On  page  201,  cross-int.  80,  he  says.  "  that  '  Exhibit  B,'  to 
his  deposition,  on  page  294,  contains  a  list  of  the  assets  of  the 
firm  of  C.  N.  H.  &  Co." 

On  page  267,  cross-int.  109  to  113,  he  testifies  as  follows: 

"  I  do  not  know  where  the  said  debtors  reside  nor  where 
"  they  resided  at  the  time  I  received  the  said  assets,  except  as 
"  it  appears  on  the  books.  I  have  never  been  to  see  any  of 
"the  said  debtors  for  the  purpose  of  collecting  or  securing 
"  what  was  due  from  them  or  either  of  them.  I  know  of  only 


155 

"  one — a  claim  against  H.  N.  Ball — which  Was  placed  in  the 
"  hands  of  an  attorney.  As  yet,  there  has  been  no  final  settle- 
"  ment  with  said  attorney.  I  am  not  familiar  with  his  collec- 
"  tions,  and  don't  know  whether  it  has  been  collected  or  not, 
"  and  don't  know  whether  it  has  been  sued  or  not.  I  know  ot 
"none  (of said  notes  and  accounts)  on  which  payment  has  beeu 
"  secured,  except  those  previously  specified.  (And  these  were 
"  secured  by  Cooley,  Wadsworth  &  Co.)  I  don't  recollect 
"  that  I  have  tried  to  secure  any  of  them." 

From  this  testimony  it  is  evident  that  Wadsworth,  having 
purchased  the  said  assets,  sat  down,  quietly,  with  his  agent, 
Mr.  Burke,  and  made  no  effort  to  either  collect  or  secure 
the  same.  Is  it  surprising,  then,  that  Wadsworth  and  his 
agent,  in  this  western  country,  or  indeed  in  any  country,  should 
fail  to  collect  or  secure  the  payment  of  the  said  assets?  Are 
debts  to  be  collected  or  secured  by  sitting  down  and  folding 
your  arms,  and  omitting  to  make  or  put  forth  efforts  of  any  kind 
in  such  direction  ?  Can  Mr.  Wadsworth  complain  after  so 
much  carelessness  for  the  space  of  five  years  ?  Should  he  not 
at  least  have  shown  some  diligence,  if  not  due  diligence  ? 
Without  such  diligence,  can  he  be  permitted  to  come  into  this 
Court  of  equity  with  the  view  of  getting  this  Court,  to  assist 
him  in  compelling  Cooley  and  Farwell  to  share  the  losses  at- 
tending these  assets  with  him,  which  losses  he  has  brought 
upon  himself  by  his  own  neglect  and  carelessness  ?  To  place 
himself  in  a  position  to  receive  the  aid  of  this  Court,  he  must, 
1st.  Show  that  he  was  not  only  deceived  by  Cooley  and 
Farwell,  but  that  he  had  no  knowledge,  or  the  means  of  inform- 
ation upon  the  subject  matter,  about  which  he  claims  he  has 
been  deceived. 

2d.  .  He  must  show,  in  the  matter  of  these  peculiar  assets, 
(notes  and  account)  that  he  has  used  all  due  diligence  to  col- 
lect or  secure  them. 

3d.  If  he  fails  in  these  or  cither  of  these  particulars,  then 
he  is  estopped  in  the  matter  of  his  complaint  upon  this  branch 
of  the  case. 

But  Mr.  Wadsworth  has  sought  to  make  it  appear  that 
Cooley  and  Farwell  knew  all  about  the  said  debtors,  and  that 
they  knew  that  said  assets  were  worthless.  His  proof,  how- 
ever, fails  to  meet  his  effort.  He  desires  the  Court  to  infer, 
that  because  Cooley  and  Farwell  had  a  general  acquaintance 


156 

with  dry  goods  merchants  in  the  country,  that  therefore  they 
must  have  known  all  the  customers  of  the  said  boot  and  shoe 
house  of  C.  N.  H.  <fc  Co.  And  in  this,  as  in  other  parts  of  his 
bill,  he  shows  his  inconsistency  ;  for  it  will  be  remembered  that 
by  his  bill  of  complaint  he  has  charged  that  he  had  all  the  per- 
sonal acquaintance  and  influence  with  the  customers  of  all 
these  firms,  from  1849  to  1857,  and  that  Cooley  and  Farwell 
had  neither  acquaintance  or  influence,  and  that,  therefore,  he 
would  have  the  Court  believe  that  he  sold  to  them  his  said  ac- 
quaintance and  influence ;  but  now  he  changes  the  matter  and 
attempts  to  make  it  appear  that  he  was  not  acquainted  with 
these  customers  of  C.  N.  H.  &  Co.,  although  they  were  made 
at  the  time  when  he,  in  his  bill,  claimed  that  he  had  all  the  ac- 
quaintance and  influence  with  and  over  them,  and  that  Cooley 
and  Farwell  had  none.  But  let  us  refer  to  the  testimony  upon 
this  matter. 

On  pages  488-9,  Mr.  Kerr  testifies,  "that  he  has  examined  the 
said  '  Exhibit  B,'  to  Burke's  deposition,  and  the  books  and  bills 
receivable  of  the  firms  of  C.,  W.  &  Co.,  Nos.  1  and  2,  and  C., 
F.  &  Co.,  and  finds  only  thirty-two  names  on  said  books  that 
were  contained  in  said  '  Exhibit  B,'  and  that  of  said  32  names 
there  was  only  12  that  were  indebted  to  either  of  said  firms, 
and  that  their  indebtedness  amounted  in  the  aggregate  to  only 
$4,297.90." 

This  deposition  of  Mr.  Kerr's  was  taken  in  May,  1864.  Since 
that  time,  to  wit,  in  October,  1865,  the  deposition  of  Edward 
Nevers  has  been  taken  upon  the  same  subject.  Before  refer- 
ring to  this  evidence,  it  may  be  well  to  remind  the  Court,  that 
in  the  life-time  of  C.  N.  Henderson,  he  placed  some  of  the 
said  assets  into  the  hands  of  C.,  W.  &  Co.  to  collect,  and 
among  them  was  the  claims  against  J.  M.  Kidd,  M.  P.  Watson, 
Galbrath  &  Ducat  and  John  Green  &  Co. 

In  answer  to  the  question,  what  had  been  collected  by  Mr. 
Farwell  on  any  of  the  debts  contained  in  said  *  Exhibit  B,'  Mr. 
Nevers  testifies,  on  page  4  of  appendix,  int.  5,  "  they  were  col- 
lected as  follows:  Of  John  Green  &  Co.,  September  15,1855, 
$722.50;  of  James  Kidd,  Jan.  31,  1863,  $55.47,  June  24,  '64, 
§446.36  ;  June  3,  1865,  $466.36.  The  note  is  fully  secured.  Of 
these  collections,  $932.72  Avas  paid  over  to  Wadsworth.  There 
are  three  more  payments  of  $466.35  each,  due  Wadsworth  on 
the  Kidd  note,  which  are  secured.  On  Galbrath  &  Ducat  there 


157 

was  paid  May  2d,  1864,  $160.96;  Oct.  19,  1864,  $104;  Jan.  1, 
1865,  $105.25.  The  balance  of  $200,  is  secured. 

In  answer  to  the  6th  int.,  he  testifies,  "  that  of  the  persons 
and  firms  named  in  said  '  Exhibit  B,'  C.,  W.  &  Co.,  Nos.  1 
and  2,  had  claims  against  M.  P.  Watson,  G.  E.  Hart  &  Brother, 
Marcus  Sperry  and  N.  Slaight,  all  of  whom  have  paid  their 
debts  to  said  firms,"  and  he  says,  "  that  he  has  examined  and 
cannot  find  that  they  had  any  claims  against  any  others  named 
in  said  '  Exhibit  B.'  " 

It  will  be  seen  from  this  testimony,  that  Cooley,  Wadsworth 
&  Co.,  Nos.  1  and  2,  collected  and  secured  every  claim  they 
had  against  the  persons  and  firms  named  in  said  Exhibit  B,  to 
Mr.  Burke's  deposition.  Had  Mr.  Wadsworth  used  the  same 
diligence  which  Cooley  and  Farwell  did,  he,  too,  might  have 
been  successful.  Debts  are  collected  and  secured  by  efforts 
and  diligence.  They  cannot  be  neglected  for  months  and  years 
without  loss.  And  no  man  is  worthy  to  receive  pay  in  this  day 
and  generation,  who  refuses  or  neglects  to  put  forth  his  ener- 
gies, or  to  bestow  his  care  upon  debts  due  him.  If  he  neglects 
them,  it  is  his  own  fault,  and  he  alone  should  be  required  to 
suffer  from  such  neglect. 

NINTH    POINT. 

It  is  claimed,  under  the  several  original  articles  of  copart- 
nership, that  Mr.  Farwell  was  under  obligations  to  take  charge 
of  the  books  and  accounts,  and  make  annual  statements  ;  arid 
that  both  Cooley  and  Farwell,  by  means  of  the  entries  in  the 
books,  deceived  the  complainant  as  to  the  real  condition  of  the 
firms,  and  of  the  stock  and  private  accounts  of  the  partners. 

By  reference  to  the  articles  forming  the  firm  of  C.,  F.  &  Co., 
it  will  be  seen  that  Mr.  Farwell  was  only  to  have  "  a  general 
supervision  of  the  books,  collections  and  sales  "  of  this  firm ; 
and  he  was  not  to  "  render  to  each  party  a  just  and  true  state- 
ment of  the  condition  of  the  firm  and  the  amount  due  to  each," 
until  the  termination  of  the  firm.  And  when  he  had  done  this,  his 
obligation  in  that  regard  was  discharged.  He  was  not  required 
to  make  or  enter  any  statement  or  statements  upon  the  books 
of  the  firm.  This  was  no  more  his  duty  than  that  of  Wads- 
worth  or  Cooley.  But  we  have  before  shown  (and  it  is  un- 
necessary to  repeat  the  ^argument),  that  the  complainant,  by  his 
statements  in  his  bill,  as  well  as  by  the  evidence,  was  fully 
acquainted  with  the  entries  in  the  books;  and  that  he 


was  80  acquainted  with  them,  at  the  time  lie  mad<*  the 
said  purchase  of  the  said  interest  of  C.,  W.  &  Co.,  in  the 
said  assets  of  C.  N.  H.  &  Co.,  and  at  the  time  he  made  the 
said  final  agreement  and  settlement  of  all  matters  on  the  21st' 
of  January,  1862,  and  he  also  had  the  said  statement,  marked 
by  Mr.  Spink  as  "  Exhibit  A,"  (which  of  itself  acquainted 
him  of  the  change  of  interest  upon  his  deficit  of  capital 
and  of  the  said  division  of  said  merchandise  in  the  ratio  of 
profits.)  The  evidence  convicts  him  of  having  absolute  knowl- 
edge of  all  the  facts  in  the  premises  before  he  made  said 
agreement.  Of  the  said  division  of  the  goods  in  that  ratio, 
his  own  bill  confesses  that  he  knew  of  it  on  the  21st  day  of 
January,  1862,  and  on  the  1st  day  of  February,  1857.  (See 
complainant's  bill,  pages  22,  23,  25  and  26.)  The  conclusion 
that  he  did  know  about  the  books  of  account,  of  the  charges 
and  credits,  of  interest  on  deficit  and  surplus  of  capital,  and 
of  the  division  of  goods  in  the  ratio  of  profits,  and  that  his  ' 
private  account  was  relatively  largely  overdrawn,  is  most  clear 
and  conclusive,  as  we  have  hereinbefore  seen. 

In  this  connection,  and  before  proceeding  with  the  argu- 
ment under  this  division  of  the  case,  it  is  necessary  that  we 
examine  the  question  as  to  the  ratio  or  proportion  the  several 
partners  would  be  entitled  to  draw  from  the  funds  of  said  firm 
of  C.,  F.  &  Co. — as  all  of  them  had  transcended  their  limits 
in  that  respect.  And 

1st.  We  say  that  the  partners,  finding  that  said  limit  (of 
$4,000  to  each  partner  during  the  term)  was  insufficient  to 
meet  the  demands  of  complainant's  personal  obligations,  they 
therefore  allowed  Wadsworth  to  draw  what  the  firm  could 
possibly  spare  from  its  business — providing  that  Cooley  and 
Farwell  could  also  draw  with  him  in  the  ratio  of  profits,  and 
that  the  said  Wadsworth  agreed  with  them  that  they  might  so 
do — and  thus  this  new  rule  for  individual  drafts  was  estab- 
lished between  them,  in  this  firm. 

2d.  This  rule  is  one  of  equity,  and,  in  this  case,  one  of 
agreement.  But  in  the  absence  of  any  agreement,  where 
partners  far  exceed  the  proscribed  limit  fixed  by  them  origi- 
nally, the  Court  ought,  and  we  think  will,  adopt  it.  The  re- 
spective rights  of  the  partners  could  not,  in  any  other  way,  be 
so  equitably  adjusted. 


159 

Mr.  Spink  testifies,  on  page  87,  cross  56  :  "It  would  be  fair 
"  (in  such  a  case)  that  each  partner  should  draw  in  the  same 
"  proportion  as  that  of  profits."  And  he  says,  on  page  87, 
cross  57,  "that,  taking  Mr.  Wadsworth's  private  account  on 
"the  21st  of  January,  1862,  in  the  firm  of  C.,  F.  &  Co.,  as  a 
"  basis  of  drafts  upon  the  funds  of  that  firm,  Fawell,  to  be 
"  equal  with  Wads  worth  in  his  draft,  would  have  been  entitled 
"  to  draw  $24,763.37  more  than  he  did  draw."  On  pages  111 
and  112,  cross  88,  he  testifies  "that,  according  to  his  (Spink's) 
"  computations  in  chief — taking  the  amount  drawn  by  Wads- 
"  worth  from  February  1st,  1857,  to  the  21st  of  January,  1862, 
"  (the  drafts  being  in  the  ratio  of  profits)  as  a  basis — Cooley 
"  and  Farwell  would  have  been  entitled  to  draw  $66,452.57 
"  over  and  above  the  amount  which  they  did  draw,"  to  be 
equal  with  Wadsworth.  On  page  112,  cross  89,  he  testifies 
that,  "  in  the  firm  of  C.,  W.  &  Co.,  No.  2,  Cooley  and  Far- 
"  well  would  have  been  entitled  to  draw  $16,436.71  more  than 
"  they  did  draw,  on  the  basis  of  Wadsworth's  drafts,  from  that 
"  firm.'l  On  page  112,  cross  89,  he  says  :  "  On  the  basis  of 
u  the  books  as  to  capital,  Wadsworth's  deficit  of  capital  and 
"  over  drafts  would  amount  to  $55,764.32.  On  the  basis  of 
"my  (Spink's)  computations  in  chief,  Wadsworth's  deficit  of 
"  capital  and  over  drafts,  added  together,  would  amount  to 
"  $34,553.89." 

It  will  also  be  remembered,  in  this  connection,  that  Cooley 
was  entitled  to  draw  twice  as  much  as  Wadsworth,  and  Farwell 
an  equal  amount.  The  justice  of  drawing  in  the  proportion  or 
ratio  of  profits  is  seen  from  the  fact,  if  another  rule  was  al- 
lowed, either  partner  could  not  only  draw  his  entire  interest 
derived  from  profits,  but  he  could  also,  in  that  way,  draw  out 
his  entire  capital,  and  defeat  the  object  of  the  partnership  by 
withdrawing  all  his  interests  therefrom.  The  proof,  then,  that 
the  complainant  was  relatively  largely  overdrawn,  is  positive. 

But  in  returning  to  the  discussion  of  the  original  proposi- 
tion, let  us  suppose  that  Mr.  Farwell  had  made  up  and  stated 
the  several  accounts  ex,  parte  upon  the  books,  as  complainant 
claims  he  did,  and  as  it  was  his  duty  to  do  under  the  original 
articles  at  the  close  of  said  copartnership ;  and  suppose  said 
complainant,  having  full  and  free  access  to  said  books  of  ac- 
count (as  Mr.  Leiter  testifies  he  had),  settles  all  copartnership 
matters  and  transactions  upon  the  basis  of  such  statements 


160 

and  entries  in  said  books — how  can  Tie  escape  such  a  settle- 
ment ?  Even  though  he  should  prove  that  he  failed  or  omitted 
to  examine  said  books — how  can  he,  even  then,  escape  it? 
By  no  law  can  he  escape  it.  By  no  law  can  he  be  relieved 
from  it.  Upon  this  point  we  desire  to  call  the  especial  atten- 
tion of  the  Court  to  the  following  authorities — to  wit : 

In  the  case  of  Heartt  vs.  Corning,  3d  page  R.,  page  571,  the 
Court  holds,  "  that  it  appears  from  the  statement  of  com- 
"  plainant's  bill,  that  it  was  one  of  the  stipulations  in  the 
"  agreement  of  copartnership,  that  Smith  should  make  up  and 
"  state^  the  partnership  accounts  annually,  on  the  1st  of  January 
"in  each  year.  Under  that  stipulation,  even  if  Smith  made 
"up  and  stated  the  accounts  exparte,  in  the  absence  of  Heartt, 
"  it  was  the  duty  of  the  latter  to  look  into  them  within  a  rea- 
"  sonable  time,  and  point  out  the  errors,  if  any  existed  therein 
"  or  he  must  be  considered  as  having  acquiesced  in  the  correct 
"  ness  of  the  accounts  as  stated  on  the  books  of  the  Jirm,  to 
"  ichich  books  both  parties  had  access  during  the  existence  of 
"  the  copartnership.  In  stating  the  accounts  of  partners  as 
"  between  themselves,  the  entries  on  the  partnership  books,  to 
"  which  both  partners  have  had  access  at  the  time  when  the 
"  entries  were  made,  or  immediately  afterwards,  are  to  be 
"  taken  as  prima  facia  evidence  of  the  correctness  of  those 
"  entries ;  subject  however  to  the  right  of  either  party  to  show 
"  a  mistake  or  error  in  the  charge  or  credit.  And  vouchers 
"  for  the  specific  items  can  never  be  required  except  under 
"  very  peculiar  circumstances."  See  also  Willis  vs.  Jarnegan, 
2d  Atk.  251 ;  Murray  vs.  Tolland,  3d  John  ch.  569.  Wild  vs. 
Jenkins,  4,  page  481,  1st  Story  Equity  Jur.  Sec.  526.  2d 
Daniels  ch.  pr.  762-763;  Freeland  vs.  Heron,  7  Cranch  147; 
Codman  vs.  Rogers,  10,  Pickering  112. 

Murray  vs.  Tolland,  3  Johnson  ch.  574-5,  the  Court  holds 
to  the  same  doctrine  as  above  and  adds,  "  that  there  was 
"  an  account  current  stated  and  admitted.  There  is  no  pre- 
"  tence  of  any  fraud  or  imposition  practiced  upon  him,  or 
"  that  he  had  not  a  perfect  freedom  of  action  in  discussing 
"  and  settling  the  account.  It  was  founded  upon  mutual  con- 
"  cessions.  If  a  person  will  enter,  even  upon  a  hard  bargain, 
"with  his  eyes  open,  observes  Lord  Hardwicke  (2d  Atk.  251) 
"  equity  will  not  relieve  him,  unless  he  can  show  fraud  or  some 
"  undue  means  iised."  See  Jessup  vs.  Cook,  4  Halst.  R.,page 
436 ;  LaMalaine  vs.  Case,  2d  P.  A.  Browns  R.  128. 


161 

Wilde  vs.  Jenkins,  4,  page  cli.  404,  is  n  strong  case  and  in 
point.  The  Court  says :  "The  statement  of  the  aecounts  at 
"the  lime  appears  by  the  books  to  have  been  carefully  and 
"  deliberately  made  *  *  *  *  and  all  accounts  between 
"the  parties  settled;  *..?>.*,*  I  am  also  satisfied 

"  from  the  examination  of  the  books  ai;d  from  the  other  evi- 
"  deuce  in  the  case,  that  both  parties  then  understood  it  to  be 
"  a  full  and  final  adjustment  of  the  partnership  concerns  up  to 
"  that  time.  It  must  therefore  require  very  strong  and  conclu- 
"  sive  evidence  of  error  or  'mistake  to  induce  the  Court  to  open 
"  the  accounts  or  go  back  beyond  the  adjustment  thereof  in 
"June,  1827. 

"  The  practice  of  opening  accounts  (which  the  parties  thcm- 
"  selves  have  adjusted  and  who  best  understood  them),  is  not 
"  to  be  encouraged.  And  it  should  never  be  done  upon  a 
"  mere  allegation  of  errors,  supported  by  doubtful,  or  even  by 
"  probable  testimony  only ;  especially  where  the  parties  to  the 
"  settlement  stood  upon  terms  of  perfect  equality,  so  that  there 
"  could  be  no  pretence  of  fraud  or  imposition  practiced  by  one 
"  party  upon  another.  In  the  language  of  a  distinguished 
"  Judge  the  whole  labor  of  proof  lies  upon  the  party  objecting 
"  to  the  account ;  and  errors  which  he  does  not  plainly  establish 
"  cannot  be  supposed  to  exist."  See  Baker  vs.  Biddle,  Bald- 
win C.  C.  Rep.  418;  Slee  vs.  Bloom,  20  Johnson  R.  page  660, 
f>87-688  ;  5  John  ch.  page  366,  385 ;  1  Daniels  ch.  Practice 
424-5  and  note ;  2  Daniel  ch.  Prae.  762-4 ;  1  Story  Equity, 
Jur.  Sec.  523;  1  Story  Equity,  Jur.  Sec.  525,  526-7. 

Chambers  vs.  Gold  win,  9  Vesey,  269,  270,  274,  wherein  the 
Court  says  :  As  to  accounts  settled  "  they  must  be  considered 
"  as  settled,  not  to  be  opened,  but  to  be  surcharged  and  falsi- 
"  tied.  Page  274. 

"  It  is  also  a  settled  rule  of  law,  that  when  there  have  been 
"  errors  in  an  account  settled  by  the  parties,  that  the  errors 
u  may  be  surcharged  and  falsified,  but  the  account  itself  is  not 
"  to  be  re-opened.  This  distinction  must  be  kept  distinctly 
"  in.  view." 

"  Where  one  has  leave  to  surcharge  and  falsify  the  burden 
"  of  proof  is  on  him  who  has  the  liberty  so  to  do  ;  if  he  can 
"  show  an  omission  for  \vhich  ihere  ought  to  be  a  credit  it  will 
"  be  added.  2  Daniels  ch.  Practice  764-."). 

21 


"  This  is  an  important  distinction,  because,  where  an  ac- 
"  count  is  opened,  the  whole  of  it  may  be  unraveled,  and  the 
"  parties  will  not  be  bound  by  deductions  agreed  upon  between 
"  them  on  taking  the  former  accounts  ;  but  when  a  party  has 
"  liberty  to  surcharge  and  falsify,  the  onus probandi  is  always  on 
"  the  party  having  the  liberty,  for  the  court  takes  it  as  a  stated 
"  account,  and  establishes  it ;  but  if  the  party  can  show  an  omis- 
"  sion  for  which  there  ought  to  be  credit,  it  will  be  added, 
"  which  is  a  surcharge  ;  or  if  any  wrong  charge  is  inserted,  it 
"  will  be  deducted,  which  is  a  falsification.  This  must  be  done 

"'by  proof  on  his  side."     2  Daniels  ch.  Prac.  764-5. 
J  "  r?r£dA>C 

It  is  also  held  that,  "••sakiKe  errors  are  never  allowed  to  be  a 

"  ground  for  opening  an  account."  (Page  228).  "It  is  said  that 
"  the  withholding  of  credit  for  interest  on  balances  due,  &c., 
"  from  year  to  year,  amounting  to  a  large  sum,  makes  the  de- 
"  fendant  liable.  The  question  is  not  whether  there  Avas  an 
<c  omission  of  credit,  but  whether  his  omitting  to  credit  it  in 
"  the  statement  of  balances  Avas  fraudulent  on  his  part.  (Page 
"  229.)  It  is  a  common  doctrine  in  equity,  that  in  the  making 
"  6f  a  bargain,  what  is  equally  known  to  both  parties,  need  not 
"  be  stated  in  order  to  make  the  bargain  a  fair  one.  The  sheet 
"  exhibited  as  the  basis  of  the  proposed  compromise  showed 
"  the  balance  from  year  to  year  in  the  hands  of  the  defendant. 
"  Was  it  a  concealment  to  omit  giving  credit  for  interest?  If 
"  there  had  been  any  agreement  with  Hubbard  that  Brooks 
"should  be  accountable  for  interest,  the  omission  to  credit 
"would  have  been  fraudulent,  (pages  229,  230),  but  if  there 
"  were  no  such  agreement,  such  omission  would  be  justifiable, 
"  even  if  it  should  eventually  turn  out  that  he  was  chargeable, 
"  if  he  believed  that  he  was  not  accountable.  It  required  no 
"  skill  in  accounts  or  examination  of  books  to  perceive  this 
"  omission  of  interest. 

"  Although  the  settlement  may  not  be  avoided,  yet  the  plain- 
"  tiff  ought  to  be  let  in  to  surcharge  and  falsify.  (Roberts  vs. 
"  Kuffiii,  2  Atk.  112,  and  page  247.) 

"  The  result  of  the  whole  is,  (inasmuch  as  defendants  have 
"  admitted  errors  and  promised  to  pay,  &c.),  that  the  settle- 
"  ment  made  may  be  confirmed,  and  the  plaintiff  allowed  to 
"  surcharge  and  falsify  the  account."  (Page  250.)  Farnam 
vs.  Brooks.  9  Pic.  212.  See  also  Union  Bank  vs.  Knapp,  3 
do.,  P.  114. 


163 

In  the  case  of  Choppedelanc  vs.  Dechenaux,  2  Curtis  it.  B. 
R.  115,  or  4  Crouch,  page  009,  the  Court  says : 

"No  practice  could  be  more  dangerous  than  that  of  opening 
"  accounts  which  the  parties  themselves  have  adjusted,  on  sug- 
"gestion  supported  by  doubtful  or  by  only  probable  testimony. 
"  But  if  palpable  errors  be  shown,  errors  which  cannot  be  mi.s- 
"  understood,  the  settlement  must  so  far  be  considered  as  made 
"  upon  absolute  mistake  or  imposition,  and  ought  not  to  be  ob- 
"  ligatory  on  the  injured  party  or  his  representatives,  because 
"  such  items  cannot  be  supposed  to  have  received  his  assent. 
"  The  whole  labor  of  proof  lies  upon  the  party  objecting  to 
"  the  account,  and  errors  which  he  does  not  plainly  establish 
"  cannot  be  supposed  to  exist." 

In  the  case  of  Halhed  vs.  Marke,  3d  Swanton,  445-7,  the 
Court  says : 

"  This  bill  is  filed  to  set  aside  an  agreement,  and  a  release 
"  founded  on  that  agreement,  for  alleged  fraud  and  imposition 
"  in  obtaining  it.  In  all  cases  of  this  kind  the  fraud  and  im- 

O 

"  position  must  be  made  out  to  the  court  by  proof  \  and  it  does 
"  not  appear  that  there  was  any  actual  fraud  or  imposition  by 
"  either  of  the  parties  to  this  agreement  and  release ;  for  both 
"  were  of  full  age.  and  capable  of  transacting.  So  that  all 
"  the  fraud  and  imposition  must  arise  from  the  oircumstancefs 
"of  the  thing  itself.  Plaintiff  alleges,  1st,  that  defendant  set 
"  up  title  in  himself  in  two  houses,  whereas  he  was  a  trustee 
"  only.  2d,  that  he  made  a  pretence  to  claim,  under  the  cus- 
"  torn  of  London,  a  consideration  of  the  release,  when  in  fact, 
"  the  portion  he  got  was  far  more  than  lie  could  have  under 
"  the  custom  of  London.  (Page  447.)  Upon  the  whole  evi- 
"  dence,  I  am  of  opinion  there  was  some  trust  between  the 
"  parties,  but  not  on  the  original  purchase.  (Page  448.)  The 
"  bill  must  be  dismissed."  (Page  449.) 

In  the  case  of  Gordon  vs.  Gordon,  3  Swanston  474,  the  Court 
says:  "  The  case  turns  upon  the  point,  did  James  Gordon  know 
"  that  there  had  been  a  private  marriage,  whether  he  thought 
"  it  valid  or  not.  If  he  did  not,  then  had  there  been  a  private 
"  statement  to  him  to  that  effect.  Though  he  did  not  believe 
"  the  statement,  still  he  was  bound  to  communicate  it  to  his 
"  brother.  If  he  can  show  that  the  plaintiff  had  the  same 
"  knowledge,  the  case  will  take  another  turn.  The  probabilities 
"  are  that  James  did  knoAV  this  fact,  or  had  reason  that  there 


104 

"had  been  .1  private  marriage.  If  such  were  the  ease,  the 
"  parties  did  not  meet  on  equal  terms  ;  and  such  being  the 
"case,  the  court  will  give  relief.  But  if  the  plaintiff  had  a 
" knowledge  of  the  fact,  and  exercised  his  own  judgment  on 
"  the  legal  eft'ects  of  it,  this  case  will  be  one  of  that  class  in 
"  which  the  court,  seeing  that  there  had  been  full  disclosure  on 
"  both  sides,  and  that  the  parties  thought  proper  to  comprom- 
"  ise,  and  settle  what  each  shall  hereafter  claim,  and  so  the 
"  agreement  stands  supported,  though  proceeding  on  mistake. 
(Page  475.)  The  case  of  Lewis  vs.  Pead,  1  Vesey,  Jr.,  19, 
asserts  the  same  doctrine.  Loyd  vs.  Passinghane,  Coopers 
ch.  R.,  155  do. 

The  object  of  requiring  Farwell  to  render  a  statement  of  the 
account  between  the  copartners,  &c.,  was  that  Wadsworth 
might  know  of  what  the  account  consisted,  and  whether  it  con- 
tained the  proper  items. 

Everything  in  the  account  stated  was  open  to  criticism  and 
correction  at  the  time.  If  no  objection  was  made  to  it,  it  was 
acquiesced  in,  and  the  parties  preceded  further  tipon  the  state- 
ment as  a  basis  for  future  eperations,  &c.  In  the  case  of  Union 
Bank  vs.  Knapp.  3  Pickering,  page  113,  Court  says:  "A 
stated  account  is  an  agreement  by  both  parties  that  the  ac- 
count is  true."  See  Truman  vs.  Hurst,  1  T.  R.,  42.  "  It  is 
sufficient  if  lie  prove  the  account  stated."  Bartlet  vs.  Emery, 
1  T.  II.  42  iu  notes.  "An  account  between  partners  shall  be 
taken  only  from  the  time  it  was  last  balanced." 
.  It  will  be  remembered  that  the  said  original  copartnership 
agreements  of  the  taid  three  firms  were  imlike  in  their  several 
requirements  in  regard  to  the  duties  they  severally  imposed 
upon  Mr.  Farwell  in  the  matter  of  statements  of  the  condition 
of  said  {inns.  In  the  1st  firm  of  C.,  W.  &  Co.,  Mr.  Farwell, 
"  at  the  end  of  each  year,  was  required  to  render  to  the  part- 
ners a  just  and  true  statement  of  all  profits  made  and  losses 
sustained,  which  was  to  appear  in  the  private  stock  account  of 
each." 

In  the  2d  firm  of  C.,  W.  &  Co.,  Mr.  Farwell  was  to  "see 
that  an  accurate  account  was  kept  of  all  expenses,  losses  and 
profits  ;  and  at  the  end  of  each  year,  render  to  each  of  the 
partners  a  just  and  true  statement  of  the  same,  which  was  to 
appear  iu  the  private  stock  accounts  of  each  on  the  ledger." 


181 
• 

In  the  firradf  0.,  F.  &  Co.,  Mr.  FarWell,  "  at  the  termination 
of  the  contract,  Avas  to  render  to  each  party  a  just  and  true 
statement  of  the  condition  of  the  firm,  ami  the  amount  due  to 
each  partner  from  the  assets." 

From  an  inspection  of  these  agreements,  it  will  be  seen  tlmt 
Mr.  Farwell  was  not  required  to  make  out  or  cause  to  be  made 
out  a  statement  of  the  condition  of  the  firm  of  C.,  J^.  &  Co., 
and  render  the  same  to  his  partners  until  the  close  or  termina- 
tion of  the  partnership;  and  even  then,  lie  was  not  required,- 
(as  in  the  former  copartnership  agreements,)  to  enter  the  same 
upon  the  books  of  the  firm,  or  any  one  of  them. 

This  firm,  by  mutual  agreement,  was  dissolved  ten  days  be- 
fore the  time  or  limitation  fixed  by  the  said  original  copartner- 
ship agreement;  hence  there  was  no  obligation  at  the  time  of 
the  making  of  the  said  agreement  of  the  21st  of  January,  1862, 
resting  upon  Mr.  Farwell  to  furnish  his  partners  with  even  a 
statement  of  the  firms'  condition,  or  that  of  the  stock  and 
private  accounts  ol  the  partners.  Had  this  firm  continued  un- 
til the  close  of  its  term  as  originally  fixed,  he  would  have  been 
required  to  perform  this  duty.  But  before  that  time  arrived, 
his  partners  (Wadsworth  and  Cooley,)  came  in  and  said  "  we 
will  not  wait  for  the  original  term  of  this  firm  to  expire  before 
we  dissolve  it,  nor  will  we  wait  for  you  to  make  up  a  statement 
for  our  benefit  at  the  time  specified  for  its  termination  in  the 
original  articles  of  agreement ;  and  we  propose  to  look  into  the 
condition  of  the  firm,  and  into  the  stock  and  private  accounts 
of  the  several  partners  for  ourselves,  and  now,  that  is,  the 
partners  one  and  all,  will  act  in  committee  of  the  whole  and 
perform  the  duties  specially  assigned  to  Mr.  Farwell  to  perform 
ten  days  later,  or  at  the  termination  of  the  contract."  And 
Mr.  Farwell  agreed  to  it ;  and  the  three  partners  were  together 
(as  Mr.  Leiter  testifies)  in  private  consultation  and  investiga- 
tion two  weeks  before  the  said  21st  day  of  January,  1862,  and 
then  dissolved  said  firm  and  made  said  agreement.  When  the 
duty  of  making  up  said  agreement  Avas  so  taken  away  from 
Mr.  Farwell,  all  and  every  of  the  partners  in  that  matter  stood 
upon  equal  ground  and  assumed  equal  responsibility.  There 
was  no  more  obligation  upon  Mr.  Farwell  than  there  Avas  upon 
Mr.  Wadsworth  and  Cooley.  Mr.  Wadsworth,  in  connection 
with  his  partners,  took  upon  himself  the  reponsibility  of  dis- 
solving said  firm  before  the  time  fixed  by  the  original  agree- 


riient,  and  he,  with  Cooley  and  Farwcll,  must  bear  alike  the 
responsibility  of  their  mutual  agreement  to  dissolve  the  said 
firm  before  the  day  of  its  limitation,  and  of  the  responsibility  of 
the  investigations  that  said  premature  dissolution  imposed  alike, 
upon  each  of  the  partners. 

But  Mr.  Farwell  did,  in  fact,  do  more  than  he  was  required 
to,  by  the  terms  of  the  agreements  of  formation  and  dissolu- 
tion of  the  said  firm  of  C.,  F.  &  Co.  We  will  turn  to  the 
evidence  and  see  what  he  did  do. 

On  page  574,  int.  15,  Mr.  Leiter  testifies,  "that  annual  state- 
ments were  made  of  the  merchandise  and  money  drawn  by 
each  member  of  the  firm ;  each  partner's  statement  was  given 
to  him." 

To  the  16th  int.  he  replies,  "  that  on  the  books  of  C.,  W.  <fc 
Co.,  the  moneys  drawn  by  each  partner  were  placed  in  the 
back  part  of  the  ledger,  also  his  portion  of  the  net  profits  of  the 
year.  Upon  the  books  of  C.,  F.  &  Co.,  the  moneys  drawn  by 
each  individual  member  of  the  firm  were  placed  to  his  account 
in  the  back  part  of  the  ledger,  the  net  profits  were  placed  to  a 
profit  and  loss  account  in  the  same  place  in  the  ledger. 

Mr.  Spink  testifies  that  the  back  part  of  the  ledger  is  the 
proper  place  for  these  accounts.  In  addition  to  these  entries, 
Mr.  Leiter,  in  answer  to  17th  int.,  says  :  "  There  appeared  on 
the  books  of  C.,  W.  &  Co.  the  amount  of  capital  stock  fur- 
nished by  each  member  of  the  firm;  and  on  the  books  of  C., 
F.  &  Co.  the  capital  that  was  to  be  furnished,  or  the  capital  of 
the  firm.  I  herewith  append  a  copy  of  said  statements,  marked 
Exhibit  No.  1."  See  pages  598  to  603,  of  evidence.  See,  also, 
Mr.  Leiter's  answer  to  the  6th  cross,  on  page  584. 

On  page  573,  I  12,  Mr  Leiter  testifies  that  "  Mr.  Wadsworth 
requested  of  me,  at  one  time,  a  statement  of  his  accounts  in 
the  several  firms,  covering  his  entire  interest  therein.  I  gave 
him  an  account  showing  the  moneys  he  had  drawn  in  the  dif- 
ferent years,  and  of  his  proportion  of  the  profits,  so  far  ns  they 
were  divided  upon  the  books,  and  also  the  stock  paid  into  the 
several  firms.  On  the  books  of  C.,  F.  &  Co.,  profit  and  loss 
account  was  not  divided,  but  I  gave  him  the  aggregate.  This 
was  in  I860  or  1861." 

[By  reference  to  the  testimony  of  Mr.  Lieter,  and  Simeon 
Farwell,  it  will  be  seen  that  Mr.  Leiter  succeeded  Simeon  Far- 
well  as  book-keeper  in  1856,  and  continued  in  such  employ- 
ment until  the  close  of  the  firm  of  C.,  F.  &  Co.] 


On  page  624,  I  12,  Mr.  Simeon  Farwell  testifies  that,  "Dur- 
ing the  time  I  was  book-keeper  I  made  out  statements,  at  the 
end  of  each  year,  of  the  private  account  of  each  member  of 
the  concern — one  on  the  28th  of  February,  1852;  one  on  the 
28th  of  February,  1853;  one  on  the  28th  of  February,  1854, 
and  one  on  the  1st  of  February,  1856.  They  were  passed  to 
each  member  of  the  firm,  each  receiving  his  own  account." 
On  page  626,  I  23  and  24,  he  testifies  that  "  there  was  a  gene- 
ral balance  sheet  made  out  at  the  end  of  each  year,  for  the  pur- 
pose of  ascertaining  the  net  profits  of  each  year,  for  the  inspec- 
tion of  the  partners.  It  contained  an  abstract  of  the  ledger, 
showing  what  the  assets  and  liabilities  were,  including  the  stock 
account."  On  page  627,  cross  4,  5  and  6,  he  says  :  "  I  think 
1  have  seen  Wadsworth  examine  his  private  account.  I  can- 
not answer  as  to  Avhen,  or  how  often ;  but  I  am  quite  sure  that 
I  have  seen  him  do  so." 

On  page  577,  I  34  and  35,  Mr.  Loiter  testifies  that  "  there 
was  a  trial  balance  made  out  quarterly,  and  also  at  the  end  of 
each  year,  after  the  books  were  balanced,  which  trial  balances 
could  be  seen  at  any  time,  by  reference  to  them.  The  last 
trial  balance  sheet  shoiced  the  condition  of  the  books  of  the 
firm  after  the  different  profit  and  loss  account's  had  been 
closed  into  stock  t  and  also  the  private  account  of  the  partners 
charged  up  to  stock" 

On  page  177, 1  79,  Mr.  Spiuk  testifies  that  "the  entries  on  page 
448  (of  ledger)  represent  the  stock  accounts  of  the  firm.  Those 
on  page  449  of  ledger,  represent  the  stock  accounts  of  Cooley 
and  Wadsworth.  Those  on  page  450  that  of  Farwell.  The 
last  three  accounts,  taken  together,  balance  the  entries  to  stock 
account."  On  page  214,  cross  169,  he  testifies:  "The  stock 
accounts  of  the  partners  balance  the  entries  to  the  general 
stock  accounts.  The  private  stock  accounts  show  the  division 
of  the  general  stock  account  between  the  several  partners. 
Thus  the  general  account  is  a  basis  for  the  others;  yet  they 
cannot  be  posted  from  it.  ANY  ONE  KNOWING  THE  SHAKES 

OF  THE  SEVERAL  PARTNERS,  MIGHT  EASILY  MAKE  UP  THE 
PRIVATE  ACCOUNTS  FROM  THE  GENERAL,  inasmuch  as  the 

general  stock  account,  beside  capital  and  profits,  shows  the 
draft  made  by  the  several  partners  for  their  own  use."  On 
page  211,  cross  15,  he  testifies  :  "  In  the  day-book  of  0.,  W. 
<fc  Co.,  No.  1,  on  the  first  page  of  the  same,  I  find  memoranda 


168; 

of  $30,000  capital  being  paid  in,  in  notes  and  merchandise. 
The  stock  ledger  of  that  firm  shows  corresponding  entries  as 
to  the  stock  of  Cooley,  Wadsworth  and  Farwell  in  the  same. 
W.  II.  Phelps  then  had  $8,000  of  stock  in  that  firm.  There  was 
no  account  opened  Avith  him  on  the  stock  ledger ;  but  on 
the  15th  of  May  folloAving,  the  day-book  shoAvs  that,  at  that 
date,  WadsAvorth  bought  out  his  interest  and  paid  in,  as  addi- 
tional capital,  his  note  of  $3,000.  The  stock  ledger,  at  that 
date,  shoAvs  entries  corresponding  Avith  those  last  named.  The 
same  day-book,  under  date  of  February  1,  1862.  shews  entries 
to  stock  account  for  amount  transferred,  at  that  date,  to 
Wadsworth's  credit  in  the  neAV  firm,  and  charge  for  the  same 
in  the  old  of  $2,148.44,  Avhich  charge  is  posted  to  Wadsworth's 
stock  account.  It  also  shoAvs  the  charges  made  at  that  date  on 
the  private  stock  ledger  to  the  several  partners,  for  interest  and 
losses.  It  further  shows  transfers  of  balances  of  accounts  at  that 
date,  to  the  neAV  firm.  These  last  entries  ar;j  all  in  Far  well's 
handAvriting.  1  also  find  entries  of  the  transfers  made  May  2d, 
1857,  of  $8,878.64  to  Cooley,  and  of  $3,278.87  to  Wadsworth, 
Avhich  I  have  already  explained  Avere  applied  on  their  stock 
notes  in  the  second  firm.  The  same  maybe  said  of  the  entries 
of  $9,422.26  and  $9,424.97,  Avhich  were  also  applied  on  the 
stock  notes.  Under  date  of  February  28,  1854,  I  find  entries 
charging  stock  with  the  amount  of  merchandise  transferred 
and  applied,  as  heretofore  explained,  on  the  stock  notes  given 
to  the  second  firm,  and  the  entries  in  the  private  stock  accounts 
correspond  with  the  divisions  of  merchandise  betAveen  the 
several  partners,  as  entered  on  the  day-book.  In  the  day-book 
of  Cooley,  Farwell  &  Co.,  under  the  date  of  February  2d, 
1857,  I  find  an  entry,  in  the  book-keeper's  handwriting,  of 
'merchandise  debtor  to  stock  for  $115,369.81',  which  was  the 
amount  of  goods  transferred  from  the  previous  firm.  Under 
that  entry  a  memorandum  in  pencil,  in  Mr.  FarAV ell's  hand- 
writing, to  post  in  private  stock  account  one-half  of  the  mer- 
chandise to  Cooley,  and  a  quarter  each  to  WadsAvorth  and 
Farwell.  On  page  306  I  found  the  entries  Avhich  I  have  ex- 
plained in  answer  to  direct  interrogatory  130,  and  for  Avhich 
there  are  corresponding  entries  in  the  private  stock  ledger." 

In  answer  to  the  161  and  164  cross  int'ys  on  page  212  and 
213,  he  says,  "  that  the  original  entries  under  the  settlement  of 
January  21st.  1862,  of  the  three  firms  were  made  upon  the 


169 

day  book  oi  each  of  the  said  firms  with  full  explanations  ;  and 
that  the  entries  to  the  private  account  of  Wadsworth  and  the 
amount  of  goods  transferred  to  C.,  F.  &  Co.  as  capital,  and 
the  amounts  of  collections  from  the  assets  of  C.,  W.  &  Co., 
No.  1  and  2,  were  so  transferred  as  capital  and  shown  in  their 
proper  place  on  the  books  of  C.,  F.  &  Co."  This  evidence 
shows,  that  Far  well  did  more  than  his  said  obligations  under 
the  said  copartnership  agreements  required  him  to  do.  By  the 
terms  of  the  said  agreement  forming  the  firm  of  C.,  F.  &  Co., 
he  was  not  required  to  make  any  statement,  or  any  entry 
upon  any  of  the  books  of  that  firm  showing  the  condition  of 
the  said  firm,  or  the  condition  of  the  stock  and  private  accounts 
of  the  partners  at  the  time  said  agreement  of  dissolution  and 
settlement  was  made  and  entered  into  as  aforesaid ;  yet  the 
evidence  shows  that  he  made  annual  and  even  quarterly  state- 
ments of  all  those  matters,  and  entered  all  the  transactions  of 
all  of  the  said  firms  in  the  books  for  the  inspection  and  benefit 
of  the  said,  partners.  It  is  generally  and  rightfully  conceded 
that  it  is  impossible  to  prove  a  negative;  but  it  must  be 
admitted  that  we  have  come  nearer  to  doing  so,  in  showing  by 
evidence  that  Wadsworth  must  have  had  knowledge  of  the 
true  condition  of  all  of  the  said  firms,  and  of  the  entries  in  the 
books,  and  of  the  stock  and  private  accounts  of  the  several 
partners,  and  particularly  of  his  own,  and  of  the  manner  in 
which  said  accounts  were  made  up,  than  was  ever  before 
attained.  It  is  for  Mr.  "Wadsworth  to  first  substantiate  his 
charges  of  deception  and  fraud,  and  his  alleged  or  pretended 
want  of  knowledge,  and  his  inability  to  have  informed  himself 
upon  or  in  regard  to  said  matters,  before  he  can  require  us  to 
produce  proof  to  rebut  his  said  charges.  But  notwithstanding 
his  failure  so  to  do,  we  have  proved  beyond  all  possibility  of 
doubt  that  his  said  charges  are  utterly  untrue.  It  will  be 
remembered  that  there  always  is  and  must  be  in  all  copartner- 
ship relations  matters  existing  and  constantly  transpiring 
between  the  partners  of  a  private  nature,  which  require  new 
agreements  varying  in  some  or  many  particulars  the  original 
agreement.  This  is  more  frequent  with  houses  that  are  trans- 
acting a  large  business,  and  especially  so  during  a  financial 
crisis.  These  new  agreements  are  made  upon  some  sudden 
turn  of  their  business  affairs,  and  they  arc  made  in  private  and 
no  writing  memorandum  is  made  of  them.  The  business  results 

22 


170 

of  these  agreements  are  entered  upon  the  books  of  account  in 
the  several  accounts  they  effect,  and  this  is  the  only  evidence 
outside  of  the  partners  of  the  same ;  and  this  is  one  of  the  prin- 
cipal reasons  why  all  entries  in  a  firm's  books  of  account,  and 
especially  to  the  stock  and  private  accounts  of  the  partners  are 
taken  by  a  Court  of  equity  as  the  evidence  of  private  or  confi- 
dential agreements  between  the  partners,  as  we  have  hereinbe- 
fore shown.  All  the  original  copartnership  agreements  form- 
ing said  three  firms  were  not  only  made  in  private,  but  they 
were  reduced  to  writing  by  the  parties  themselves.  All  their 
business  affairs  as  touching  their  capital  stock  and  private 
accounts  were  managed  and  conducted  with  the  utmost 
secrecy.  Upon  these  matters  their  confidential  clerk  had  no 
authentic  information.  All  their  new  agreements  that  affected 
or  changed  their  original  agreements  were  made  in  like  secrecy. 

The  firm  of  C.,  F.  &  Co.,  was  organized  in  secret  and  the 
relative  rights  and  interests  of  the  partners  were  studiously 
kept  from  their  clerks  and  bookkeeper.  By  their  original  co- 
partnership agreement  forming  this  firm  they  expressly  provide, 
as  we  have  before  seen,  that  not  even  the  condition  of  the  firm 
and  the  relative  condition  of  the  partners  therein  were  to  be 
made  known  by  Mr.  Farwell  by  a  statement  even  to  the  part- 
ners until  the  close  of  the  copartnership.  And  this  statement 
(when  made  up  by  Mr.  Farwell  at  the  termination  of  the  firm 
and  presented  to  the  partners),  was  a  full  discharge  of  his  spe- 
cial duty.  He  was  not  required  to  place  the  same  upon  the 
books.  This  duty  was  no  more  his  than  Wadsworth's  or 
Cooley's.  This  said  clause  was  in  fact  inserted  at  the  request 
of  Mr.  Wadsworth,  and  for  the  reason,  that  he  desired  to  keep 
his  real  relative  position  in  the  firm  as  to  its  capital  and  profits 
a  secret  (if  possible)  from  the  clerks  and  book-keepers.  Hence 
Mr.  Leiter  replies  to  him  when  he  asked  about  the  accounts 
and  if  there  was  any  double  or  wrongful  charges,  "  no,  unless 
it  is  the  matter  of  interest  charged  to  him."  And  the  testi- 
mony of  Mr.  Leiter  shows  that  the  partners  were  all  very  reti- 
cent, and  that  they  held  private  conferences  and  were  in  secret 
session  some  two  weeks  before,  and  immediately  before  the 
date  of  the  said  agreement  of  dissolution  and  settlement. 

From  the  statements  of  complainant  in  his  bill,  and  from  the 
books  of  account,  and  from  all  the  evidence  in  the  case,  and 
from  the  law  of  the  case,  there  can  then  be  no  doubt,  1st, 


m 

That  Waclsvvorth  made  said  agreement  of  the  21st  of  January, 
1862.  2d.  That  he  made  it  after  a  full  knowledge  of  the  facts 
and  the  entries  in  the  books,  including  the  said  division  of 
goods,  and  the  said  charges  and  credits  of  interest.  3d.  That 
Wadsworth  had  free  access  to  the  books,  and  also  had  written 
statements.  4th.  That  the  alleged  statements  of  Cooley  and 
Farwell  to  him  were  fully  sustained  by  the  books  of  account. 
5th.  That  the  recital  in  the  said  agreement  was  true  in  sub- 
stance and  fact.  6th.  That  complainant's  account  was  rela- 
tively largely  over-drawn  at  the  time  he  made  said  agreement; 
and,  therefore,  7th,  his  said  agreement  with  his  partners,  made 
on  the  21st  of  January,  1862,  must  stand  as  a  full  settlement 
of  all  their  copartnership  matters :  and  in  fact  there  remains 
to  be  done,  between  the  said  partners,  under  said  agreement, 
only  the  division  of  the  remaining  assets,  according  to  the 
pro  rata  amount  due  to  each. 

When  there  has  been  an  accounting  had  between  partners, 
and  they  have  settled  their  private  and  partnership  accounts 
upon  such  accounting  after  examination  and  deliberation,  such 
accounting  and  settlement  concludes  the  parties  thereto  ;  and 
no  court  will  disturb  it,  except  upon  the  most  positive  and  un- 
equivocal evidence  of  deception  and  fraud.  The  parties  to 
such  a  settlement  are  presumed  to  be  acquainted  with  all  the 
facts  and  considerations  governing  the  parties  at  the  time, 
which,  if  such  settlement  were  set  aside  and  a  new  accounting 
had,  could  not  be  made.  A  settled  account  is  audited  by  the 
parties,  its  correctness  acknowledged,  and  all  the  considera- 
tions between  the  parties  recognized  and  adjusted,  which,  in  no 
other  way,  could  be  brought  in  by  proof.  Positive  and  con- 
vincing proof  of  fraud  or  error,  that  was  at  the  time  of  the 
settlement  unknown  to  one  or  more  of  the  parties,  not  open  to 
his  information,  must  be  shown,  before  a  court  of  equity  will 
either  set  aside  the  settlement,  or  open  it  to  be  surcharged  and 
falsified ;  and  the  burthen  of  such  proof  is  upon  him  who  as- 
sails the  settlement.  See  Hearott  vs.  Corning,  3d  page  568 ; 
Caldwell  vs.  Leiber,  7  page  483;  Allen  vs.  Coit,  6  Hill  318; 
Millondon  vs.  Sylvester,  8  La.  262 — 268 ;  Chapidilane  vs.  De- 
chemaux,  4  Crouch  306  ;  Wild  vs.  Jenkins,  4  Page  481  ;  Lang- 
don  vs.  Roane,  6  Alaba.  518. 

Upon  this  point,  Chief  Justice  Marshall  remarks  :  "  No 
"  practice  could  be  more  dangerous  than  that  of  opening  ac- 


172 

"  counts  which  the  parties  themselves  have  settled,  supported 
"  by  probable  or  doubtful  testimony."  See,  Desha  et  al,  vs. 
Smith,  20  Alabama  747,  752  ;  Coifing  vs.  Taylor,  16  Ills.  47]  ; 
Coffing  vs.  Taylor,  18  Ills.  426. 

The  law  imputes  to  a  person  the  knowledge  of  a  fact,  of 
which  the  exercise  of  common  prudence  and  ordinary  diligence 
would  have  apprised  him.  Peters  vs.  Goodrich,  3  Conn.  146- 
150  ;  Sigourney  vs.  Munn,  6  Conn.  333. 

Collyer  on  Partnership,  sec.  121,  says  :  "  The  effect  of  a  dis- 
solution as  inter  sese  is  to  put  an  end  to  all  transactions,  inter 
sese  as  partners,  except  for  the  purpose  of  taking  a  general  ac-" 
count  and  winding  up  the  concern." 

TENTH    POINT. 

What  was  the  relative  position  of  these  partners,  one  to  the 
other,  under  their  agreements  and  under  the  evidence,  at  the 
time  they  formed  the  said  three  several  firms,  that  induced  such 
copartnership  relations  ? 

Complainant  claims  that  his  money,  influence  and  credit,  east 
and  west,  with  customers,  and  in  the  eastern  markets,  was  on 
his  side,  the  moving  consideration ;  and  that  the  labor  and  ser- 
vices of  Cooley  &  Far  well,  was  the  sole  moving  consideration 
on  their  side.  Upon  these  questions,  raised  by  bill  and  answer, 
we  have  already  considered  under  the  evidence  in  our  review 
of  complainant's  bill,  which  brought  us  to  the  conclusion  that 
the  considerations  that  induced  the  formation  of  the  said  sev- 
eral firms,  was  the  actual  money  and  services  rendered  to,  or 
was  agreed  to  be  rendered  to  each  firm  and  its  business  by 
each  of  its  partners ;  and  that  the  money  which  Wadsworth 
agreed  to  furnish,  as  capital,  was  the  sole  consideration  for  his 
membership,  and  that  beyond  this  he  was  of  no  use  or  advan- 
tage to  either  of  said  firms.  For  the  evidence  and  argument 
upon  this  question,  we  refer  the  court  to  our  review  of  com- 
plainant's bill  of  complaint,  under  the  said  second  and  fourth 
noted  allegations.  See  ante  pages  from  10  to  17  inclusive,  and 
especially  to  ante  from  pages  39  to  50  inclusive. 

At  the  only  time  when  Wadsworth's  credit  and  influence,  (if 
he  had  any),  was  needed,  to  wit,  from  1857  to  1861,  the  evi- 
dence shows  them  to  have  been  greatly  weakened,  if  not 
wholly  destroyed ;  and  that  he  in  fact  was  on  the  very  verge 
of  bankruptcy,  and  that  Cooley  and  Farwell  were  obliged  to 
sustain  the  credit  and  the  business  of  the  said  firm  of  Cooley, 


173 
Farwell  &  Co.  alone,  and  without  his  aid,  and  were  obliged, 

*  *  O  7 

for  this  purpose,  to  resort  to  loans  of  money  and  the 
credit  of  their  personal  friends  during  the  time  men- 
tioned. If,  at  the  commencement  of  the  said  first 
firm,  Wadsworth  had  such  vastly  superior  credit  and  in- 
fluence over  customers,  and  manufacturers  and  wholesale  mer- 
chants at  the  east  and  west,  as  he  claims  he  did,  he  failed,  (as 
we  have  before  shown  by  the  evidence),  either  to  use  it  or  even 
to  retain  it  for  the  benefit  of  said  firms,  or  either  of  them. 

In  the  two  last  firms  his  services  were  wholly  released  to 
him,  and  in  the  first,  after  the  first  six  months,  he  did  not  pre- 
tend to  render  any  to  it;  and  he  does  not  even  pretend  that  he 
ever  rendered  any  services  to  either  of  said  firms.  Mr.  Phelps, 
who  was  a  partner  in  the  first  firm  for  a  short  time,  testifies, 
that  the  only  reason  why  Wadsworth  was  admitted  into  the 
same,  was  the  amount  of  money  he  put  into  the  firm,  and  that 
the  capital  of  the  firm  was  ample  for  its  business.  His  great 
y"  influence  and  credit "  was  not  even  thought  of,  and  formed 
no  part  of  the  consideration  for  his  admission  into  that  firm. 
What  other  consideration  could  there  be  ?  Wadsworth  per- 
formed no  services,  and  the  capital  was  sufficient  for  its  busi- 
ness. Why,  then,  was  Wadsworth  admitted  into  said  firms,  or 
either  of  them?  Why!  it  was  the  money — the  money  alone, 
which  he,  at  the  time,  agreed  to  pay  into  the  capital  stock. 
What  had  he  but  money  ?  What  did  he  render  to  the  said 
firms,  or  either  of  them,  but  his  money  capital  ?  In  the  last 
firm  he  did  not  furnish  but  about  half  the  sum  he  agreed  to  do. 
What  acquaintance  has  complainant  proved  that  he  had  with 
the  customers  of  said  firms  ?  None  whatever !  What  credit 
and  influence  has  he  proved  that  he  had  and  actually  rendered 
to  said  firms,  or  cither  of  them,  at  any  time  in  the  eastern  mar- 
kets ?  None  whatever  !  What  little  influence  (if  any,)  he  had 
at  the  time  of  the  organization  of  the  said  first  firm,  he  did  not 
retain  ;  for  the  evidence  states  that  he  paid  no  attention  to  the 
customers,  and  that  this  part  was  all  done  by  Farwell  and  the 
clerks.  He  was,  then,  in  fact,  a  partner  in  said  firms  simply 
because  of  the  money  he  agreed  to  pay  into  the  several  firms 
as  his  portion  of  the  capital.  Why  was  John  V.  Farwell  a 
partner  in  the  first  firm,  with  a  right  to  one-eighth  of  the  pro- 
fits? Because  he  paid  into  the  firm  the  sum  of  $1,000,  and 


174 

rendered  his  services  in  the  manner  prescribed  by  the  articles 
of  copartnership  to  said  firm,  biat  chiefly,  because  of  the  value 
of  his  services. 

In  the  firm  of  C.,  W.  &  Co.,  No.  1,  Cooley  and  Wadsworth's 
services,  whatever  they  were,  were  to  balance  each  other,  and 
they  furnished  an  equal  amount  of  capital  and  shared  the 
profits  and  losses  in  equal  proportions.  Not  so  with  Farwell. 
He  shared  one-eighth  of  the  profits  and  losses,  although  his 
cash  capital  was  only  one-thirtieth  of  the  whole  amount.  He 
was  in  the  firm  then,  principally,  because  of  the  value  the  said 
firm  placed  upon  his  business  capacity  and  influence. 

In  the  firm  of  C.,  "W.  &  Co.,  No.  2,  the  equality  between 
Cooley  and  Wadsworth  was  no  longer  maintained  or  admitted. 
Cooley  exceeded  him  in  his  cash  capital  by  $10,000,  and  he 
had  made  himself  so  influential  that  his  services  were  admitted 
and  allowed  to  be  worth  the  sum  of  $30,000  to  said  firm,  and 
that  of  Farwell's  a  like  amount. 

In  the  firm  of  Cooley,  Farwell  &  Co.,  Cooley's  and  Farwell's 
services  and  influence  were  admitted  and  allowed  to  be  worth 
$60,000  each,  instead  of  $30,000,  as  in  the  former  firm.  The 
position  of  the  several  partners  in  the  several  firms  were,  rela- 
tively, distinct  in  each  firm.  This  we  have  before  shown  and 
illustrated,  but,  inasmuch  as  this  constitutes  the  grand  differ- 
ence or  question  in  controversy,  it  is  better  to  say  more  than  is 
necessary,  rather  than  omit  to  say  what  may  be  necessary. 

In  the  firm  of  Cooley,  Wadsworth  &  Co.,  No.  2,  Cooley 
paid  in  $50,000,  or  half  of  the  capital  and  his  services, 
and  received  half  of  the  profits.  Wadsworth  paid  in  $40,000 
and  no  service,  and  had  one-fourth  the  profits.  Farwell 
paid  $10,000  and  his  services,  and  had  one-fourth  the  pro- 
fits. Thus  it  will  be  seen  that  Farwell's  cash  and  time 
capital  was  taken  to  be  just  equal  to  Wadsworth's  cash  cap- 
ital, and  that  Wadsworth's  capital  and  that  of  Farwell's 
cash  and  time  capital  combined  were  just  equal  to  Cooley's 
cash  and  time  capital.  Now,  suppose  that  the  capital  and 
profits  of  this  firm  amounted  to  $200,000,  and  that  it  was  all 
in  money  at  the  close  of  the  copartnership,  when  it  is  proposed 
to  form  a  new  firm  under  the  name  of  C.,  F.  &  Co.,  with  a 
capital  of  $200,000,  to  be  paid  in  as  follows  :  Cooley,  cash, 
$100,000  and  his  services ;  Wadsworth,  cash,  $80,000  and  no 
services;  Farwell,  cash,  $20,000  and  his  services;  half  of  the 


175 

profits  to  Cooley,  and  the  balance  equally  between  Wadsworth 
and  Fanvell.  Thus  it  will  be  seen  that  Farw ell's  cash  and 
service  capital  in  this  firm  are  equal  to  Wadsworth's  cash  cap- 
ital, and  that  the  cash  and  service  capital  of  Farwell  and  the 
cash  capital  of  Wadsworth,  combined,  are  just  equal  to  the 
cash  and  service  capital  of  Cooley,  as  in  the  first  firm ;  but 
here  the  similarity  between  them  or  their  like  relative  position 
ends.  In  the  first  firm  the  value  that  was  placed  upon  the  ser- 
vice capital  of  Cooley  and  Farwell,  each,  was  $30,000.  In  the 
second  firm  their  services  are  vahied  at  $60,000  each,  or  double 
that  in  the  first  firm. 

Now  suppose,  in  making  up  the  capital  of  the  said  firm  of 
C.,  F.  &  Co.  to  $200,000,  (half  of  the  cash  and  service  capital 
by  Cooley ;  $80,000  cash  by  Wadsworth,  and  a  quarter  of  the 
cash  and  service  capital  by  Farwell,  as  aforesaid,)  and  they 
propose  to  draw,  as  they,  respectively,  have  a  right  to,  from 
the  said  assets  in  the  said  old  firm,  and  the  same  amounting  to 
$200,000,  as  aforesaid,  to  make  up,  as  far  as  it  will,  the  capital 
of  the  new  firm.  Cooley 's  share  thereof  is  $100,000,  and  he 
puts  it  in  ;  Wadsworth's  share  thereof  is  $65,000,  and  he  puts 
it  in,  and  he  finds  himself  short  in  the  sum  of  $15,000 ;  Far- 
well's  share  is  $35,000,  and  he,  from  it,  puts  in  his  share  of 
$20,000,  and  he  has  a  surplus  of  $15,000.  Thus  we  see  that 
the  relative  position  of  the  several  partners  have  changed;  and 
the  question  is,  in  what  way  and  from  what  cause  ?  Mani- 
festly, from  the  cause  that  the  value  of  service  capital  has  been 
changed  in  the  later  firm  from  that  in  the  former.  In  the  first, 
the  services  of  Cooley  and  Farwell  were  valued  at  $30,000 
each ;  in  the  last,  their  services  are  valued  at  $60,000  each. 

But  take  another  illustration,  and  as  a  basis  say  that  the 
profits  of  C.,  W.  &  Co.,  No.  2,  were  $200,000 

Cooley's  cash  capital  50,000 

Wadsworth's  cash  capital    -  40,000 

Farwell's  cash  capital  10,000 


Making,  in  the  aggregate      -  $300,000 

Upon  this  basis,  how  would  the  relative  rights  of  the  partners 

stand,  were  they  to  form  the  new  firm  of  C.,  F.  &  Co.,  with 

a  capital  of  $200,000,  and  draw  from  the  funds  of  the  former 

firm  to  make  up  their  respective  shares — to-wit : 


'  176 

Cooley's  cash  capital,  $100,000,  and  his  services. 

Wadsworth's  cash  capital,  880,000,  and  no  services. 

Fanvell's  cash  capital,  620,000,  and  his  services. 

Mr.  Cooley's  share  of  such  assets  would  be,  for  his 
Capital  $50,000 

Profits  ....  .  .      100,000 


Making                                                                    -  8150,000 

Thus  he  would  have  a  surplus  of       -  -     $50,000 

Farwell's  share  of  assets  would  be  as  follow*  : 

His  share  of  capital       -  810,000 

His  share  of  profits  -       50,000 


Making  $60,000 

He  would  have  a  surplus  of      -  -     840,000 

Wadsworth's  share  in  said  assets  would  be : 

Capital  $40,000 

Profits     -           ---                                     -  -       50,000 


Making  -         -  $90,000 

His  surplus  would  be  only  -     $10,000 

From  these  illustrations  it  must  be  plain  that  the  relative 
position  of  the  several  partners  in  the  respective  firms  changed 
when  the  new  firm  was  formed ;  therefore,  upon  no  reasoning 
can  the  complainant  maintain  the  predicate  of  his  bill,  "  that 
he  should  stand  relatively  as  Avell  in  the  last  firm  as  in  the  first." 
It  is  remarkably  strange  that  he  and  his  solicitors  should  have 
made  so  gross  an  error  in  the  predicate  of  the  bill.  This  illus- 
tration throws  light  upon  what  the  complainant  calls  errors  in 
the  book-keeping  of  Mr.  Farwell.  The  error  (if  there  was  one) 
was  his  own,  or  that  of  his  solicitor ;  and  he,  and  not  Farwell, 
should  be  held  responsible  for  it.  It  was  an  error  of  figures, 
or  computation,  and  it  may  be  that  the  head  only  produced  it. 
Mr.  Wadsworth  was  undoubtedly  made  to  believe  that  this 
trap  would  catch — that  is,  that  the  capital  stock  in  the  firm  of 
C.,  F.  &  Co.  would  make  Wadsworth's  capital  stock  relatively 
the  same  as  that  of  his  partners.  To  a  careless  observer  this 
theory  looks  plausible,  for  he  would  not  stop  to  take  into  con- 
sideration the  service  capital  allowed  to  Cooley  and  Farwell 
by  the  said  respective  firms.  But  a  moment's  reflection  and 
study  of  said  original  copartnership  agreements  will  satisfy  the 


m 

most  stupid  mind  that  what •  "MY.  W:uls\vortli  calls  Mr.  Farwell's 
error,  Mas  rather  liis  o\vn  mistake  upon  the  relative  rights  ami 
interests  of  the  said  respective  partners  in  the  said  three  linns, 
under  their  said  several  agreements  as  to  the  cash  and  service 
capital  contributed  to  e:;rh  iirin,  and  the  value  of  such  service 
capital  as  determined  by  the  said  several  agreements  in  each 
tirm.  It  would  hot  bo  only  a  great  injustice,  but  simply  ab- 
surd, to  make  Cooley  ami  Farwell  responsible  for  such  an  error 
of  complainant.  Both  Wads\vorth  and.  his  solicitor  ignored 
the  mathematical  fact  that,  relatively,  Fanvell  was  rising  and 
he-  falling  in  the  several  scales  of  their  copartnerships,  and  that 
that  \vas  caused  from  the  fact  that  Farwell  received  profits  for 
his  service  capital  as  well  as  for  his  cash  capital. 

lielbre  dismissing  the  discussion  of  this  point,  I  desire  to 
direct  the  attention  of  the  Court  to  "Exhibit  No.  15,"  to  Mr. 
Spink's  deposition  on  page  225  of  evidence,  in  connection  with 
complainant's  boastful  allegations  that  he  was  the  partner  of 
influence,  credit  and  money  in  all  the  said  three  several  firms, 
and  that  Cooley  and  Farwell  were  Avithout  either  money,  credit 
or  influence.  The  said  "Exhibit  No.  15"  is  in  words  and 

figures  following : 

"  CHICAGO,  March  17th,  186-J. 

'•  ]>EAII  Sin — I  want  you  to  lend  me  thirty-five  hundred  dol- 
li  lavs,  so  that  I  can  have  it  by  the  20th  of  this  month.  You 
"  may  think  it  strange  that  I  should  ask  you,  but  it  is  life  or 
'•  death  almost  with  me.  ])o,  if  it  is  anyway  consistent,  let  me 
"  have  it.  Please  write  011  return  mail.  I  will  reimburse  you 
"  out  of  the  first  collections  of  the  proceeds  of  old  firm  debts. 
"Yours,  &c.,  E.  S.  WADSWOKTII. 

"F.  B.  COOLEY,  Esq." 

1  >y  referring  to  the  original  letter,  on  file  with  the  evidence 
in  this  case,  it  will  be  seen  that  the  printers  made  a  mistake  in 
the  amoitot  of  the  sum  the  complainant  asked  Cooley  to  "lend 
him,"1  and  thai  it  was  the  sum  of  "  thirty -Jive  thousand  dollars,"" 
instead  of  thirty-five  hundred,  as  printed.  But  suppose  the 
sum  he  asked  Cooley  to  "  I  nJ liim"1  was  but  *:],,500,  as  printed. 
"Does  this  help  him  in  the  position  he  has  assumed  of  weultli, 
credit  "/<.</  inJltn-n<-<  /  Is  a  man  of  •<'•<•<//(//,  credit  <m<l  injht- 
,  >!<•<>  driven  to  liie  straits  of  "Itfeor  deuth"  fort-he  want  oi'the 
l»altrv  Sinn  of  ^  thirty-jive  /u>H<f,-«/.  </ol!<i,'<  "''  If  he  was  the 
man  of  ''\vealth,  credit  and  inHuence"  he  pretends  to  have 


ITS 

been,  and  Cooley  was  as  destitute  of  these  as  he  pretends  he 
was,  would  complainant,  one  of  the  oldest  citizens  of  Chicago, 
have  written  to  Cooley,  who  resided  in  New  York,  Legging  in 
such  importunate  terms  to  "  lend  him"  the  small  amount  of 
"  thirty-Jive  hundred  dollars1''  to  assist  him  in  his  extremity, 
as  he  states,  because  "it  is  life  or  death  almost  with  him?" 
On  the  other  hand,  if  by  this  letter  he  asked  Cooley  to  "  lend 
him"  the  sum  of  "thirty-five  thousand  dollars"  because  "  it 
was  life  or  death  with  him"  then  his  credit,  and  his  influence, 
and  his  money  were  not,  in  his  own  estimation  at  least,  equal 
to  that  of  Mr.  Cooley's. 

Whichever  way  he  chooses  to  turn  this  letter  of  his,  or 
whatever  construction  he  may  seek  to  place  upon  it,  to  bolster 
up  his  absurd  allegations — claiming  all  the  wealth,  credit  and 
influence  of  these  three  firms — it  strikes  him  like  cannon  balls. 
His  own  conscience  may  have  become  so  encrusted,  like  the 
monitors  of  the  ocean,  that  no  penetration  (to  his  vision)  has 
taken  place ;  but  to  an  observer,  looking  on,  his  encasement 
is  riddled  and  shattered  to  pieces  by  his  own  bullets. 

ELEVENTH  POINT.    ° 

It  is  assumed  on  the  part  of  complainant,  that  after  the  pur- 
chase and  sale  of  the  said  merchandise  on  the  21st  day  of 
January,  1862,  and  the  charging  of  the  same  at  invoice  price 
to  the  private  account  of  Cooley  and  Farwell  under  the  said 
agreement  of  that  date,  the  said  transaction  in  fact  created  a 
debt  due  the  firm  from  Cooley  and  Farwell,  and  that  they  are 
bound  before  the  said  final  division  of  the  said  "  remaining 
assets  "  to  pay  the  said  agreed  value  of  said  merchandise  into 
the  said  firm  of  Cooley,  Farwell  &  Co.,  and  then  the  said  part- 
ners were  to  divide  the  said  moneys  so  paid  in,  as  so  much 
more  of,  or  so  much  added  to  the  said  "  remain/////  (iwfn" 
between  them,  "pro  rata,  according  to  the  amount  due  to  each." 

If  the  said  agreement  had  not  provided  otherwise  there 
would  be  force  in  this  position,  or  rather,  that  the  balance 
under  the  former  agreements  should  be  first  equalized.  I5u1 
agreements  change  natural  results  or  consequences.  I>y  the 
said  agreement!  of  the  21st  of  Jan.,  '62,  the  relative  interest  > 
of  the  several  partners  were  determined  by  charging  to  the 
private  account  of  Cooley  and  Farwell  the  said  merchandise 
at  the  invoice  price,  and  by  charging  to  the  complainant's  pri- 


179 

vate  account  the  said  &10,000,  received  by  him,  and  then 
viding,  after  the  debts  were  paid  that  the  "  remaining  assets  " 
should  be  divided  between  them  "  pro  rata,  according  to  the 
amount  due  to  each.'1'' 

Before  making  of  the  said  agreement,  complainant  was 
largely  overdrawn  upon  the  books,  and  short  in  his  capital  stock 
subscribed  by  him,  relatively  to  that  of  his  partners.  But  the 
complainant  at  this  time,  although  he  was  relatively  overdrawn 
and  short  as  aforesaid,  yet  he  did  not  occupy  the  position  or 
liability  of  an  ordinary  debtor  to  the  firm  of  which  he  was  a 
member ;  and  because  he  was  a  partner,  he  could  not  have 
been  sued  at  law  by  the  firm  for  the  amount  of  his  said  over- 
draft and  deficiency.  After  the  making  of  the  said  agreement, 
and  after  the  said  respective  changes  had  been  made  as  afore- 
said, the  partners'  several  accounts  were  relatively  changed. 
Before,  complainant's  account  was  relatively  largely  overdrawn 
and  his  capital  stock  relatively  much  smaller  than  his  partners. 
Now,  after  the  making  of  the  said  agreement,  and  the  charge 
of  the  said  goods  to  the  private  account  of  Cooley  and  Farwell, 
amounting  to  $161,041.89,  and  the  charge  of  $10,000  to  com- 
plainant's accounts,  Cooley  and  Farwcll's  private  accounts  were 
i-elatively  overdrawn  as  compared  with  his.  Not  only  so,  but 
an  actual  consideration  passed  from  Cooley  and  Farwell  to  the 
complainant  by  said  agreement  for  making  up  their  several 
accounts  in  this  way,  to- wit :  Cooley  and  Fanvell  undertook, 
with  the  assets  of  the  said  firm,  to  pay  all  its  debts,  amounting 
to  about  $430,000,  and  all  the  expenses  of  collecting  or  con- 
verting the  said  assets  for  that  purpose  into  money,  and  released 
the  complainant  from  all  care,  labor  and  responsibility  about 
that  matter.  When  these  debts  and  expenses  were  paid  by 
Cooley  and  Farwell,  then  "  the  remaining  assets  were  to  be  divided 
between  the  partners,  pro  rata,  according  to  the  amount  due  to 
each"  That  is,  the  private  accounts  of  the  partners  were  to  be 
closed  by  adding  to  that  of  C.  and  F.  the  said  amount  of  $161,- 
041.89  and  to  that  of  complainant,  the  said  amount  of  $10,000. 
TJiis  determined  the  relative  shares  or  interests  of  the  several 
partners  in  or  to  the  said  "remaining  assets."  It  will  be  ob- 
served that  by  this  agreement,  the  capital  <nul  profits  of  the  sev- 
eral partners  are  no  longer  distinct  one  from  the  other.  They 
are  by  it  merged  into  one  common  interest  and  are  no  longer 
separable  ;  and  this  constitutes  another  of  the  considerations  of 


,sv/cV  tt'/rccaicnf.  And  such  Mas  f,hc  manner  or  mode  adopted 
by  tlic  partners  to  determine  tln'ir  wvcrc/l  shan-*  or  ///// /vx/.v, 
rel(itn'ely,in  the  xdid  "  remaining  assets  "  The  said  "  remain- 
ing assets"  were,  as  a  matter  of  course,  to  be  divided  between 
the  partners,  to-wit:  "pro  ra.fa  according  fo  tltf  fn«»nu?-  <l>n 
to  each"  How  could  said  "  remai»'in</  */.•<>•<  v*  "  In-  divided 
otherwise  under  the  said  agreement  V  Their  relationship  as 
partners  no  longer  existed,  and  the  linn's  name  was  to  be  used 
only  by  C.  and  F.  in  closing  its  business.  The  partners'  sev- 
eral accounts  had  been  adjusted  and  made  up  by  an  agreement 
under  their  hands  and  seals,  and  some  of  the  reasons  and  con- 
siderations from  one  to  the  other  were  stated  in  said  agreement ; 
to-wit,  the  payment  of  the  liabilities  and  the  expenses  of  close- 
ing  the  business ;  the  closing  of  the  profit  and  loss  account ;  and 
finally,  the  providing  for  and  prescribing  how  the  "remaining 
assets "  should  be  disposed  of  between  them.  As  we  have 
before  said,  the  original  capital  of  the  several  partners,  both, 
cash  nnd  service,  and  the  relative  share  of  each  in  the  profits, 
and  the  several  partners'  private  accounts  Avere  all  merged  by 
this  said  agreement  into  hotchpotch,  or  into  one  common  mass, 
denominated  by  the  partners  in  their  said  agreement  '•'•remain- 
ing assets."  The  "  remaining  assets  "  were  no  longer  capital 
and  profits,  nor  as  debts  of  one  or  more  of  the  partners  to  the 
firm,  as  under  their  original  copartnership  agreement;  but  they 
are  "  remaining  assets,"  to  be  "  divided  between  the  several 
partners,  pro  rata,  according  to  the  amount  due  to  each,"  as 
made  up,  determined  and  agreed  upon  by  all  the  partners  in 
their  said  final  settlement;  therefore,  we  say, 

•_M.  The  relation  of  the  said  partners  to  one  another  was 
such,  that  though  we  admit  for  the  sake  of  the  argument,  that 
there  was  no  final  adjustment  or  settlement  of  their  affairs,  MY. 
Wadsworth's  said  overdrafts  would  not  make  him  a  debtor  of 
the  linn  in  the  ordinary  or  common  law  sense,  or  meaning  of 
the  term  debtor. 

This  is  evident  from  the  fact  that  one  partner,  as  we  have 
before  said,  cannot  sue  his  copartner  at  common  law.  The 
account  so-  overdrawn  by  one  partner,  is  taken  to  be  an  item 
in  his  account,  to  be  adjusted  either  by  agreement  or  by  law 
in  the  final  division  of  assets,  to-wit :  1st,  to  be  taken  out  of  his 
]>rofits,  if  any,  and  if  not,  then  2d,  out  of  his  capital,  if  he  has 
any.  Upon  this  point  we  desire  to  call  the  attention  of  the 


Court  to  the  following  authorities:  In  ihe  case  oi  (,'oilin  vs. 
Taylor,  1<>  Ills.,  page  471,  the  Court  holds  to  the  following 
doctrine  : 

"  Both  sociu  to  have  regarded  a  tvansfer  of  Coffiney's  inter- 
"  ests  in  the  effects  of  the  Jinn-  as  including  his  liability  to 
"  account  for  the  moneys  advanced  to  him  by  the  tirm,  or  in 
"  other  words,  withdrawn  by  him  from  it.  This  \vas  not  true 
"  in  law.  It  would  be  but  an  item  in  the  account  in  adjusting 
"  the  liability  of  one  partner  with  the  other  upon  the  terms  of 
"  the  partnership,  after  its  dissolution  and  settlement  of  its 
"  aftairs  with  third  persons  and  to  sustain  this  position,  the 
"  Court  cites  the  Bank  of  England  vs.  Richardson,  IS  Eng.  Ch. 
"  169,  170;  Wilson  vs.  Soper,  13  B.  Monroe  II.  411;  Snairall 
"  vs.  O'Bannons,  7  B.  Monroe  11.  608."  Story  on  Part.  Sec. 
;j48,  and  note^a,  See  also  C.  Chadsey  vs.  Hai-rison,  11  Ills.  156. 

TWELFTH   POINT. 

The  complainant,  in  his  bill,  alleges  various  grounds  on 
which  he  insists  that  the  relation  between  complainant  and 
Cooley  and  Farwell  was  such  as  to  create  a  trust  and  confi- 
dence on  the  part  of  Cooley  &>  Farwell,  or  a  fiduciary  rela- 
tionship ^between  them  and  him,  which,  by  the  principles  of 
equity,  imposed  extraordinary  duties  upon  them,  toward  him, 
in  resrard  to  the  said  firm's  business.  In  answer  to  this,  we 

o  * 

desire  and  have  only  to  call  the  attention  of  the  court  to  a 
case  in  point,  and  which  reaches  the  merits  of  the  discussion 
now  being  had.  The  facts  and  the  law  of  this  case  being  so 
similar,  in  many  respects,  that  the  whole  case  should  be  read 
and  considered,  to  wit :  Farman  vs.  Brooks,  9  Pickering,  page 
212  to  250,  inclusive.  Also,  see  Godard  vs.  Garble,  9  Rice, 
169  S.  C. ;  1st  Christy's  Elfr.  Digest,  page  932,  sec.  11. 

In  the  case  of  Ogden  vs.  Astor,  4th  Sanford's  N.  Y.  R,  the 
court  says  :  "  The  fiduciary  relation  of  Trustees  to  cestuey  qiie 
trust  subsists  between  surviving  partners  and  the  representatives 
of  the  deceased."  But  this  relation  never  exists  between  gen- 
eral and  surviving  partners.  The  complainant  has  failed  to  in- 
troduce any  evidence  in  support  of  this  allegation,  and  the' 
law  is  too  plain  in  its  bearings  against  his  said  claim  to  demand 
a  further  or  other  consideration  of  this  point. 

THIRTEENTH    POINT. 

Ill  the  absence  of  evidence  to  prove  that  Cooley  and  Far- 
well,  or  one  of  them,  made  false  representations  to  Wadsworth 
as  to  the  value  of  the  notes  and  accounts  or  assets  belonging 


182 

to  the  iinn  of  C.  N,  Henderson  &  Co.,  ami  in  the  absence  of1 
evidence  to  prove  that  "Wads  worth  relied  upon  such  represen- 
tations, and  that  he  did  not  have  other  means  of  information, 
there  is  no  ground  for  the  relief  from  his  contract  in  that 
matter. 

The  evidence  to  prove  fraud  in  this  matter  has  utterly  failed, 
biit  for  all  the  evidence  there  is  upon  this  question  and  the  law 
governing  the  same,  we  refer  to  the  discussion  already  had  un- 
der the  1st,  2d,  4th,  5th,  8th  and  9th  Points.  (See  ante  pages 
118,  123,  127,  130  and  157.) 

FOURT  K  EXT  I  [    PO IXT. 

In  the  absence  of  evidence  to  prove  great  inadequacy  of  the 
price  given  by  Cooley  and  Farwell  for  the  said  merchandise 
under  the  said  agreement  of  the  21st  of  January,  1862,  there 
is  no  ground  for  setting  said  sale  aside.  For  the  evidence 
touching  the  value  of  the  merchandise,  we  beg  leave  to  refer 
to  ante  pages  G2  to  78  inclusive,  under  the  head  of  the  Eighth 
Allegation.  As  to  the  law  governing  this  point,  we  desire  to 
call  the  attention  of  the  court  to  the  following  cases :  Osgood 
vs.  Franklin,  2  John,  ch.  1  ;  Law  vs.  Blanchard,  8  Vesey  133  ; 
Underbill  vs.  Howard,  10  Vesey  200 ;  McArtree  vs.  Engert, 
13  Ills.  248. 

FIFTEENTH    POINT. 

When  a  bill  charges  upon  another  fraud,  and  that  by  reason 
thereof  it  is  further  charged  that  complainant  was  induced  to 
make  a  certain  agreement,  and  the  fraud  so  charged  is  the  sub- 
stance or  the  basis  of  the  bill,  and  he  fails  to  make  good  his 
charge  by  proof,  his  bill  must  be  dismissed,  for  the  equities 
which  he  seeks  depends  upon  the  fact  of  actual  fraud  proven. 
This  doctrine  is  most  fully  recognized  in  the  case  of  Mount 
Vernon  Bank  vs.  Stone,  2  R.  I.  129. 

In  this  case  the  bill  charges,  "Thai Stone  fraudulently  con- 
cealed the  books  of  account  from  the  plaintiffs,  and  removed 
the  same  from  the  office  and  place  of  business,  and  had  re- 
ceived large  sums  of  money  belonging  to  the  plaintiffs,  and 
fraudulently  retained  portions  of  the  same,  and  appropriated 
the  same  to  his  own  use,  &c. ;  and  that  Stone  in  the  accounts 
he  rendered  to  the  plaintiffs  from  time  to  time  hath  made  false 
and  fraudulent  representations  of  his  conduct  and  proceedings 
— that  he  hath  received  smaller  sums  of  money  for  interest 
than  he  did  in  fact  receive  as  such  agent,  and  that  by  means  of 


183 

such  false  atid  fraudulent  representations  hath  deceived  the 
plaintiffs,  and  hath  obtained  from  them  a  certain  release  and 
discharge  of  a  portion  of  said  account  and  surrender  of  the 
bond  executed  by  said  Stone  for  the'faithful  discharge  of  the 
duties  of  his  agency." 

Percurium.  "  After  a  careful  examination  of  the  evidence 
in  relation  to  the  charges  of  fraud,  we  feel  bound  to  say  that 
the  plaintiffs  in  our  judgment  have  failed  to  prove  them,  and 
the  only  question  which  remains  to  be  considered,  is,  whether 
the  bill  ought  to  be  dismissed,  or  sent  to  a  master  for  an  ac- 
count, with  liberty  to  the  plaintiff's  to  prove  any  error  or  mis- 
take in  the  settlement  which  has  heretofore  been  made,  and  in 
the  receipt  or  release  given  and  executed  by  them,  and  also  to 
prove  any  matters  of  claim  not  embraced  by  said  settlement. 
This  would  be  the  ordinary  course  of  the  Court  on  a  bill  by 
the  principal  against  his  factor  for  an  account.  The  difficulty 
in  pursuing  this  course  in  the  present  case  arises  from  the 
charges  of  fraud  contained  in  the  bill. 

"  We  think  these  charges  of  fraud  constitute  the  principal 
ground  of  relief  set  forth  in  the  bill,  and  we  cannot  permit  the 
plaintiffs,  after  having  failed  to  prove  tho  fraud,  to  fall  back  on 
the  allegation  that  the  defendant  has  not  accounted,  and  has 
not  produced  and  delivered  his  books  of  account,  and  to  treat 
the  case  as  if  no  allegation  of  fraud  was  made"  The  rule  in 
relation  to  this  subject  is  stated  by  the  court  in  the  case  of 
Price  vs.  Berrington,  7  Eny,  Law  and  Equity,  R.  2GO,  to  wit : 

"  When  the  bill  sets  up  a  case  of  actual  fraud,  and  makes 
flu  it  the  ground  of  the  pray  erf  or  relief,  the  plaintiff  is  not  en- 
titled to  a  decree  by  establishing  some  one  or  more  of  the  facts 
quite  independent  of  fraud,  but  which  might  of  themselves 
create  a  case  under  a  totally  distinct  head  of  equity  from  that 
which  would  be  applicable  to  the  case  of  fraud  originally 
stated.  We  thinJi  the  nde  is  founded  in  the  highest  justice 
\  plaintiff  ought  not  to  be  permitted,  considering  that  a  Court 
of  Chancery  is  always  open  to  allegations  of  fraud,  to  speculate 
upon  the  chances  of  relief  upon  that  ground,  and  failing  in 
that  to  fallback  upon  different  ground."  See  also  Forraby  vs. 
llobson,  '2-2(1  Enycli,  It.  •_'.->5  ;  Glasscott  vs.  Long,  do.  310. 

The  object  of  Mr.  Wadsworth,  as  stated  in  his  bill,  is  to  set 
aside  the  said  agreement  of  the  21st  of  Jan.,  18(52,  on  the  ground 

»  1  '  >  O 

of  fraud,  and  thereby  to  re-open  all  matters  of  partnership  in 


184 

order  to  be  let  into  a  flail  or  original  accounting  with  his  part- 
ners. On  the  '26th  page  of  his  bill  he  brings  all  his  statements 
;iiid  allegations  to  a  point  and  into  a  single  paragraph,  in 
which  he,  in  the  most  emphatic  manner,  charges  fraud,  and 
makes  the  fraud  so  charged  the  basis  or  substance  of  his  bill. 
It  is  as  follows  : 

"That  his  said  partners,  by  means  of  the  erroneous  entries 
"  in  said  firms'  books,  and  by  representing  said  books  to  be 
•  correct,  induced  your  orator  to  enter  into  the  aforesaid  agree- 
"•  ment  of  January  21st,  .V.  D.  lsii2,  and  that  he  in  fact  signed 
"said  agreement  under  an  erroneous  impression  of  his  rights 
"  in  the  premises,  induced  ft;/  ?/;'  (ifoi-exni'I  <-<n:<lition  <>f  x«i<l 
"lii'iii**  l>ook$)  and  by  the  representation*  of  his  said  partners, 
"  and  he  does  and  will  insist  that  for  the  condition  of  said 
"  books,  and  for  the  consequent  error  into  which  he  fell,  his 
"  said  partners  arc  wholly  responsible  ;  and  that  sold  agree- 
'•  :»i  nt  lu.xt  nfi'iDC-d  is  a  fraud  njiun  ;/onr  orator^  and  is  wholly 
"  void." 

On  page  19  of  bill,  he  further  alleges,  "  That  he  was  in- 
"duced  to  sign  the  above  writing,  (to  wit,  that  of  Jan'y  21st, 
•'  !  ^<>2,)  and  to  enter  into  the  stipulations  thereof  solely  by  the 
"  representations  of  said  Cooley  andFarwell  above  mentioned  ; 
"  that  he  knew  nothing  as  to  the  relation  which  his  private  ac- 
"  count  bore  to  the  private  accounts  of  his  partners,  except  as 
"they  informed  him,  and  that  ;mless  he  had  believed  the  aforc- 
"  said  statements  of  his  partners  he  never  would  have  assented 
"  to  the  aforesaid  arrangement  ;  that  by  reason  of  the  writing 
'"  last  aforesaid,  the  said  Cooley  and  Far  well  possessed  tliem- 
"  selves  of  all  the  property  of  the  linn  of  Cooley,  Farwell  & 
Co." 


These  allegations  of  fraud  are  of  the  same  nature  of 
in  said  Rhode  Island  case,  and  they  form  (as  in  that  case)  the 
foundation  of  the  bill  of  complaint.  Without  these  charges 
of  fraud,  "Wads  worth  has  not  laid  a  foundation  for  the  relief 
prayed  in  his  bill  of  complaint.  This  being  so,  and  the  evi- 
dence to  sustain  these  charges  (as  in  that  case)  having  ut- 
terly failed,  the  said  complainant  cannot  take  any  relief  under 
his  bill. 


185 


SIXTKKNTH     POINT. 

The  said  clause  in  the  said  agreement  of  the  21st  of  Jan- 
uary, 1SG2,  to  wit:  "  Whereas,  E.  S.  Wai  Is  worth  has  largely 
overdrawn  liis  account,  ttc.,"  was  not  tlie  re) >re mentation  of 
Cooley  and  Farwell  tohi;n,  for  it  was  the  united  judgment  of 
1  lie  three  partners,  or  the  declaration  of  the  three  partners; 
and  they  and  each  of  them  are  to  be  presumed  from  this  decla- 
ration to  have  known  all  about  their  several  stock  and  private 
accounts.  It  is  to  be  presumed  that  the  books  were  before 
them,  and  that  they  and  each  of  them  had  examined  them,  and 
that  this  declaration  was  made  upon  their  and  each  of  their 
personal  knowledge  of  all  matters  stated  and  referred  to  in 
said  agreement. 

It  is  true  that  complainant  directed  Mr.  iSpink,  in  his  com- 
putations in  chief,  to  make  up  the  several  stock  and  private 
accounts  of  the  partners  upon  an  hypothesis  of  his  own,  out- 
side of  the  books  and  their  agreements,  in  order  to  make  it 
appear,  if  possible,  that  his  allegation,  that  his  account  was 
not  largely  overdrawn,  and  that  it  was,  relatively,  as  good  as 
his  partners  and  much  better  than  Farwell' s.  But  in  this,  upon 
his  own  hypothesis,  he  lias  utterly  failed.  It  will  be  seen  on 
pages  10  and  17  of  printed  evidence,  that  Mr.  Spink,  in  his  ex- 
amination in  chief,  states  that  the  partners  had  drawn  from 
the  funds  of  the  firm  of  Cooley,  Far  well  &  Co.,  respectively, 
as  follows; 

Cooley,    the    sum    of  $51,504.80 

Fanvtjil,      "       "        "  29,228.44 

Wadsworth,       "       "  50,477.09 

It  will  be  borne  in  mind  that  Mr.  Spink  testifies,  as  we  have 
before  seen,  that  if  the  partners  draw  more  than  their  original 
copartnership  agreement  allowed,  they  should  draw  in  the  ratio 
of  their  profits.  This  being  so,  and  it  must  be,  for  it  is  the 
only  rule  that  Avould  be  just ;  then  by  adding  to  Cooley's  draft 
twice  the  amount  of  Wads  worth's  draft  and  we  have  the  amount 
he  would  be  entitled  to  draw  to  be  equal  to  Wadsworth's 
draft,  to  wit  :  *100,954.18 

Farwell  would  be  entitled  to  draw  an  amount  equal 

to  that  drawn  by  Wadsworth,  to  wit,      -  50,477.09 


Making  a  total  that  they  would  have;  been    entitled 
to  draw  of          (Carried forward])  >•  151,4:31.27 

24 


186 

(Brought  forward.}  *1 51 ,431.27 

Now  take  from  this  amount  the  sum  they  actually 

drew,  to  wit,  HO, 732.94 


And   we  have  the  amount  they  were  entitled  to 

draw  more  than  they  did,  to  wit,  -       &70,698.33 

to  be  equal  to  Wadsworth's  drafts. 

This  shoAVS  that  this  allegation  in  this  particular  is  wholly 
untrue,  even  upon  his  hypothesis. 

But  it  may  be  said  that  WadsAvorth,  according  to  Mr.  Spink's 
computation  in  chief,  drew  from  the  funds  of  C.,  F.  &  Co.  only 
$34,310.05,  but  it  will  be  seen  in  his  reply  to  the  150th  cross 
interrogatory,  on  page  208  of  printed  Evidence,  that  in  this  he 
did  not  include  the  following  sums  which  he  had  received  and 
was  charged  to  his  account,  to-wit : 
His  draft  for  -  £  2,538.47 

Amount  received  from  the  assets  of  C. 

N.  H.  &  Co.  2,527.80 

The  interest  of   C.,  W.  &  Co.  in  the 

assets  of  C.  N.  H.  &  Co.  sold  to  him     13,000.00 
Making  the  sum  of  -  -si s, 066.33 

Mr.  Spink,  on  page  110,  cross  86,  testifies,  that  the  amounts 
drawn  by  the  partners  from  the  funds  of  the  two  firms  of  C., 
W.  &  Co.  No.  2,  and  C.,F.  &  Co.  were  respectively  as  follows  : 
By  Cooley  $53,311.86 

By  WadsAvorth  52,376.38 

By  Farwell  32,364.71 

*  13 8,05 2. 95 

The  parties  having  the  right  to  draw  in  proportion  to  profits, 
and  by  making  Wadsworth  draft  the  standard,  and  Mr.  Cooley 
would  be  entitled  to  draw  -  8104,752.7''- 

and  Farwell  the  sum  of  52,376.38 


Making  the  sum  of  8157,129.14 

Which  C.  and  F.  were  entitled  to  draw.  Now  by 
taking  the  amount  they  did  draw  from  this 
amount,  to-wit :  -  84,741.09 


And  we  have  the  amount  of  x   ,  2,388.05 

Which  they  were  entitled  to  draw  more  than  they  did  from 
said  tAvo  firms.  Surely  Wadsworth's  account  Avas  relatively 
largely  overdrawn  by  the  original  articles  of  agreement,  by  the 


18? 

special  agreement  of  the  partners  and  by  the  rule  of*  merchants 
as  well  as  the  rule  of  equity ;  and  he  knew  it  was  when  he  filed 
his  bill,  and  of  this  he  bears  testimony  himself,  when  he  signed 
the  said  agreement  of  the  21st  of  January,  1862.  And  now  he 
comes  into  Court  upon  his  own  figures,  and  they  testify  against 
him  and  his  bill. 

SEVENTEENTH   POINT. 

Complainant's  capital  stock  in  the  firm  of  Cooley,  Farwell  & 
Co.,  was  short  in  the  ratio  of  the  amount  the  partners  sever- 
ally agreed  to  pay  into  said  firm,  as  compared  with  that  which 
his  partners  paid  in,  upon  the  basis  of  the  books,  or  the-  ori- 
ginal articles  of  copartnership ;  and  upon  the  basis  of  his  own 
hypothesis ;  and  upon  the  basis  of  the  computations  of  his 
experts  in  chief. 

Let  us  refer  again  to  the  figures  to  see  if  it  is  not  so.  Mr. 
Spink  testifies  on  pages  109  and  110,  cross  81,  82  and  84,  as 
follows  :  That  according  to  the  books  of  account,  Wads- 
worth's  deficit  of  capital  was  $39,150.58.  According  to  my 
computations  in  chief  his  deficit  of  capital  stock  was  $17,840.15. 
Upon  the  basis  that  the  partners  were  to  pay  in  capital  stock, 
as  follows :  half  by  Cooley,  two-fifth  by  Wadsworth,  and  one- 
tenth  by  Farwell,  then  Wadsworth  was  short  in  his  capital  in 
that  proportion  to  theirs  in  the  sum  of  $18,624.93.  And  that 
Farwcll's  capital  stock  paid  into  the  firm  of  C.,  F.  &  Co.,  on 
the  basis  of  the  computations  in  chief,  leaving  out  the  wrong- 
ful charges  of  the  Wabash  avenue  building  account  and  the 
loan  of  $5,000,  was  the  full  sum  of  $26,860.32. 

To  equalize  the  aforesaid  inequalities  of  capital  stock  and 
private  over-drafts,  the  partners  mutually  agreed  to  cast  inter- 
est upon  such  deficit  of  capital  stock  and  private  drafts  at 
the  rate  of  six  per  cent,  per  annum,  and  accordingly  the  books 
of  account  weiv  made  up  under  said  agreement,  containing 
their  stock  and  private  accounts  with  interest  charged  and 
credited  at  that  rate.  Was  there;  anything  wrong  in  this? 
Certainly  not,  if  the  partners  agreed  so  to  do;  and  the  evidence 
shows  conclusively  that  they  did  so  agree.  The  entries  in  the 
books  as  we  have  seen  under  the  law,  are  sufficient  evidence 
of  this  fact ;  but  the  books  stand  strongly  supported  as  to  this 
agreement  by  the  said  "  Exhibit  A  "  of  Spink' s  deposition,  on 
|»age  -44  of  printed  evidence,  in  which  is  contained  the  charge 
of  this  interest  by  name  to  the  account  of  Wadsworth,  And 


1  ss 

certainly  us  to  the  equit y  of  tliis  interest  there  can  be  no  doubt. 
In  fact  at  that  time  interest  at  six  per  ecu!,  was  below  the 
usual  rates  of  the  banks,  and  among  those  who  had  money  to 
loan  on  long  time.  But  to  a  firm  that  had  to  borrow  money  at 
a  rate  of  from  10  to  20  per  cent,  in  order  to  sustain  their  busi- 
ness and  keep  their  credit  good,  as  Mr.  Leiter  testifies,  they 
were  obliged  to  do,  interest  at  six  per  cent,  as  Mr.  Spink  tes- 
tifies on  page  90,  cross  68,  Avas  not  an  adequate  or  fair  consid- 
eration. The  full  capital  provided  for  in  the  articles  of  copart- 
nership of  the  firm  of  C.,  F.  &  Co.,  was  no  more  than  the  busi- 
ness of  the  firm  required.  The  neglect  to  supply  it  on  the  part 
of  Wadsworth  lessened  the  amount  of  business  of  the  firm,  and, 
as  a  consequence,  lessened  the  profits  of  its  business  ;  but 
instead  of  lessening  the  labors  of  Cooley  and  Farwell,  it 
increased  both  their  anxiety  and  labors ;  for  as  Mr.  Spink  has 
testified,  it  requires  much  more  skill  and  labor  to  conduct  a 
business  -when  the  capital  is  insufficient,  than  when  it  is  ample. 
Nor  was  Mr.  AVadsworth  entitled  to  the  full  time,  capital  or 
services  of  Cooley  and  Farwell  in  this  firm,  except  on  the 
ground  that  he  paid  into  that  firm  the  full  sum  of  $80,000,  but 
notwithstanding  his  great  failure  as  aforesaid,  he  has  received 
the  constant  and  unremitted  labors  of  his  partners  during  the 
entire  term  of  said  copartnership.  And  they  were  obliged  to 
so  labor,  and  to  redouble  their  labors  by  reason  of  his  said  defi- 
cit of  capital,  or  permit  said  firm  to  make  a  ruinous  failure ; 
and  as  it  was,  with  all  their  energy  and  skill,  both  their  time 
and  money,  capital  and  their  credit,  were  put  in  peril  by  his 
said  failure  to  make  up  his  capital. 

Before  passing  to  the  consideration  of  the  cross  bill  filed  in 
this  cause,  we  desire  to  call  the  attention  of  the  Court  to  a  few 
items  in  the  evidence  specially,  and 

1st,  That  the  goods  sold  after  the  9th  of  January,  1802, 
and  up  to  the  1st  of  February  following,  were  croneously 
charged  up  to  stock  account,  when  they  should  have  been 
charged  to  the  private  account  of  Cooley  and  Farwell.  (See 
evidence,  page  582,  inty's  GO,  61  and  62). 

2d.  There  was  no  injury  done  to  either  of  the  partners  by 
the  erasures  spoken  of  in  the  81st  direct  interrogatory  of  Mr. 
Spink,  made  in  the  stock  account  on  page  1  of  ledger;  and 
there  was  no  injury  done  by  reason  of  the  said  entries  not  fol- 
lowing each  other  in  the  order  of  time.  Mr.  Spiuk  testifies, 


189 

that  "none  of  the  partners  suflVivd  any  loss  from  the  manner 
"  in  which  the  entries  were  made.  It  is  evident  to  me  that 
"  these  erasures  were  marie  to  correct  errors  previously  made. 
"  They  or  some  of  them  would  probably  have  suffered,  had  the 
"  erasures  not  been  made. 

3d.  The  goods  on  hand  at  the  close  of  each  firm  must  be 
considered,  in  the  absence  of  a  special  agreement,  as  uncon- 
verted assets,  and  they  could  not  be  considered  as  so  much 
capital,  when  put  into  the  succeeding  firm,  except  by  special 
agreement.  (See  evidence,  page  216,  croSs  178.) 

4th.  Mr.  Spink's  computations  in  chief  change  the  basis  of 
all  the  transfers  of  assets  from  one  firm  to  another,  and  the 
basis  of  interest  from  that  of  the  agreements  of  the  partners, 
as  evidenced  by  the  entries  on  the  books.  (See  evidence,  page 
217,  cross  179.) 

5th.  The  said  several  partners,  being  acquainted  with  all 
the  private  agreements  between  themselves,  the  books  would 
show  to  them  what  their  respective  accounts  were  prior  to  said 
transfers.  (See  evidence,  page  216,  cross  175.) 

6th.  Mr.  Spink  made  no  account,  in  his  compilations  in 
chief,  of  the  said  unequal  over-drafts  of  the  partners,  as  here- 
inbefore set  forth  and  explained.  (See  evidence,  page  86, 
cross  53.) 

7th.  There  were  uncollected  notes  and  accounts  belonging 
to  the  first  firm  of  Cooley,  Wadsworth  &  Co.,  on  the  1st  of 
April,  1859,  amounting  to  $15,628.08  ;  and  on  the  first  day  of 
February,  1862,  there  was  remaining  uncollected  the  sum  of 
$12,750.02.  (See  evidence,  page  110,  cross  85.) 

8th.  The  words,  "  the  remaining  assets  of  both  firms  shall 
be  divided  pro  rata,  according  to  the  amount  due  to  each, 
would  in  mercantile  circles  be  understood  to  mean  that  each 
partner  should  have  an  amoimt  of  the  remaining  assets  equal 
to  the  balance  at  his  credit  in  stock  account  on  the  books. 
(See  evidence,  page  117,  cross  102.) 

9th.  Mr.  Spink  testifies,  on  page  221,  cross  195,  that  he,  in 
his  examination  of  the  books  of  account  of  the  said  three  firms, 
did  not  discover  any  evidence  of  deceit,  nor  any  evidence  of 
an  intention  to  deceive,  in  the  manner  the  said  books  or  any 
of  them  were  kept. 

10th.  "  Annual  statements  were  made  of  the  merchandise 
"  on  hand  and  money  drawn  by  each  partner,  and  each  part- 


190 

'-•  ))(•!•">  statement  was  given  to  him.  On  the  liooks  of  C.,  W. 
"  &  Co.,  the  moneys  drawn  by  each  parlner  were  placed  in 
"  the  back  part  of  the  ledger ;  also  his  portion  of  the  net  profits 
"  of  each  year.  Upon  the  books  of  C.,  F.  &  Co.,  the  monex  s 
"  drawn  by  each  individual  member  of  the  firm  were  placed  to 
"  his  account  in  the  back  part  of  the  ledger.  The  net  profits 
"  were  placed  to  a  profit  and  loss  account  in  the  same  ledger. 
"  There  was  no  annual  division  of  them.  There  also  appeared 
"on  the  books  of  C.,  W.  <fc  Co.,  the  capital  stock  furnished  by 
"  each  member  of  the  firm;  and  on  the  books  of  C.,  F.  &  Co., 
"the  capital  that  was  to  be  furnished,  or  the  capital  of  the 
"  firm.  I  herewith  append  a  copy  of  said  statement,  marked 
"  '  Exhibit  No.  1.'  Collections  made  from  C.,  W.  &  Co.,  No. 
"  1,  were  divided  to  Cooley  and  Wads  worth,  in  these  state- 
"  ments  made  on  the  books  of  C.,  W.  <fc  Co.,  No.  2.  (See 
"  said  'Exhibit  No.  1,'  on  page  508  of  printed  evidence.)  Mr. 
"  Wadsworth  requested  of  me,  at  one  time,  a  statement  of  his 
"  account  in  the  several  firms,  showing  the  moneys  he  had 
"  drawn  in  the  several  firms,  covering  his  interest  therein.  I 
"  gave  him  an  account  showing  the  moneys  lie  had  drawn  in 
"  the  different  years,  and  his  proportion  of  the  profits,  so  far 
"  as  they  were  divided  upon  the  books,  and  also  the  stock  paid 
"  into  the  several  firms.  I  might  add,  that  in  the  account  of 
"  C.,  F.  &  Co.,  profit  and  loss  account  was  not  divided,  but  I 
"  gave  him  the  aggregate."  (See  Mr.  Leiter's  testimony,  on 
pages  573  and  574,  int.  12,  13,  14,  15,  16  and  17.) 

llth.  There  was  no  injury  done  to  either  partner,  nor  was 
there  any  impropriety  in  leaving  the  said  building  account 
standing  on  the  books.  (See  Mr.  Spink's  evidence,  page  107, 
cross  77.) 

It  will  be  remembered  that,  so  soon  as  the  said  debts  of  ('.. 
F.  &  Co.  were  paid,  to  wit — on  the  28th  of  January.  1S03 — 
Mi-ssrs.  Cooley  and  Farwell,  in  pursuance  of  the  said  agree- 
ment of  settlement,  gave  notice  to  Mr.  Wadsworth  of  that 
fact,  and  that  they  were  ready  to  divide  the  remaining  asset > 
as  PIT  said  agreement.  But  he  refused  so  to  do;  and  the  rea- 
son why  he  refused  he  states  in  his  bill  to  be,  that  said  remain- 
ing assets  were  not  converted  into  money.  And  lie  undoubt- 
edly has  given  the  true  reason.  He  did  not  want  the  care  of 
his  portion  of  said  "remaining  assets,"  nor  the  expense  and 
labor  of  collecting  and  converting  the  same  into  money.  It 


191 

was  his  intention  to  force  this  care  and  labor  upon  Mr.  Far- 
well,  and  up  to  this  time-  lie  has  succeeded  in  so  doing.  On 
the  ix{.h  of  May,  J863,  Mr.  Far  well  had  collected  from  said 
assets  the  sum  <>('  s  I  <;, So  7. 58,  and  thereupon,  to-wit — on  the 
same  day  and  year — Messrs.  Cooley  and  Farwell  gave  to  said 
Wadsworth  notice  ot  that  fact,  and  that  they  wei'e  ready  to 
divide  the  same  and  the  other  remaining  assets,  under  the  said 
agreement.  (See  notices  on  pages  68  1-2,  marked  "Exhibits 
Nos.  1  and  2,"  to  the  deposition  of  Mr.  Ballard.)  On  the  6th 
of  February,  186;!,  Mr.  Wadsworth  received  of  said  remain- 
ing assets,  in  money,  the  snm  of  $3,497.77.  (Sec  Mr.  Letter's 
testimony,  on  page  596,  I  79;  page  59:3,  I  72;  page  594,  I  77.) 

It  may  be  well  to  state,  in  this  connection,  or  call  the  atten- 
tion of  the  Court  to  the  error  of  Mr.  Leitcr  in  his  first  depo- 
sition, as  to  the  amount  of  the  nncollected  notes  and  accounts 
now  on  hand  over  and  above  the  amount  charged  to  profit  and 
loss. 

On  page  582,  int.  59,  Mr.  Leiter  testifies,  "that  the  amount 
charged  to  the  account  of  profit  and  loss  since  the  making  of 
the  said  agreement  of  the  21st  of  January,  1862,  is  $149,015.29." 

On  page  591,  cross  42,  he  says:  "  That  the  said  charge  to 
the  account  of  profit  and  loss  included  that  of  the  firm  of  C., 
AV.  &  Co.,  No.  2,  and  C.,  F.  &  Co."  (See  page  582,  int.  59.) 

On  page  581,  int.  56,  he  says  :  "That  the  amount  of  the 
notes  and  accounts  now  on  hand,  uncollected,  is  about  $175,- 
<K)0."  In  his  2d  deposition,  on  page  691,  int.  2,  he  states  "  that 
he  made  an  error  in  this  amount  of  $30,000,  and  that  the  true 
amount  of  uncollected  notes  and  accoitnts  was,  in  fact,  but 
-s|  17,000." 

On  page  578,  int.  ;>G,  lie  says  :  "  That  the  amount  collected 
-nice  the  payment  of  the  said  debts  of  Cooley,  Farwell  &  Co., 
is  -ss5,913.15." 

And  since  the  taking  of  Mr.  Leiter's  last  deposition  Mr.  Far- 
AVell  has  collected  from  ten  to  fifteen  thousand  dollars  more. 
These  amounts  are,  of  course,  subject  to  some  expenses  and 
costs,  by  way  of  attorney  and  court  fees,  tfcc. 

From  the  testimony  of  Mr.  Leiter  we  also  learn,  that  about 
the  time  the  said  debts  of  the  firm  of  C.,  F.  &  Co.  were  paid, 
as  aforesaid,  Mr.  Cooley  retired  wholly  from  business,  and  di- 
rected him,  as  a  member  of  the  firm  that  succeeded  to  the  2d 
linn  of  ('.,  F.  it  Co.,  to  keep  all  the  funds  collected  from  the 


192 

said  remaining  assets  of  the  first  firm  of  C.,  F.  <fc  Co.,  ready 
to  be  divided  whenever  Mr.  Wadsworth  desired  to  divide  the 
same  under  the  said  agreement  of  the  21st  of  January,  1862, 
and  that  all  collections  made  from  said  "  remaining  assets  " 
were  deposited  with  said  succeeding  firm  (Farwell,  Field  & 
Co.,)  ready  at  any  time  to  be  so  divided.  On  or  about  the  1st 
of  January,  1865,  the  said  firm  of  Farwell,  Field  &  Co.,  dis- 
solved, and  thereupon  the  said  moneys  arising  from  the  said 
"  remaining  assets  "  have  been  kept  on  deposit  with  the  Union 
National  Bank  of  Chicago,  and  are  now  on  deposit  with  said 
Bank,  ready,  as  they  always  have  been,  to  be  divided  under 
the  said  agreement. 

EIGHTEEN!']  I    POINT. 

The  complainant  insists  that  capital  must,  under  the  law,  be 
refunded  before  profits  are  realized.  This  may  be  so,  under 
the  original  copartnership  agreements,  but  original  agreements 
are  subject  to  change  by  subsequent  agreements ;  and,  as  we 
have  hereinbefore  shown,  the  said  copartnership  agreements 
were,  one  and  all,  changed  in  many  particulars,  and  the  evi- 
dence of  such  changes  were  entered  upon  the  books  of  account, 
and  subsequently  were,  time  and  again,  ratified  by  the  acts  of 
each  of  the  partners.  The  said  final  agreement  of  settlement 
of  the  21st  of  January,  1862,  was  not  only  a  recognition  of  all 
the  entries  in  the  books,  and  evidenced  a  change  of  the  original 
copartnership  agreements,  but  it  was  a  ratification  of  all  the 
said  changes  and  entries  in  the  books  in  conformity  to  them. 
But  while  Mr.  Wadsworth  is  contending  that  the  capital  of 
each  partner  must  be  refunded  before  the  profits  are  realized, 
it  would  be  well  for  him  to  remember  at  least  two  things, 

1st.  That  the  debts  of  the  firm  must  be  paid  before  either 
partner,  under  the  law,  could  withdraw  from  the  funds  of  the 
firm  either  the  capital  stock  or  the  profits.  When  the  said 
agreement  of  21st  of  January,  1862,  was  made,  and  Mr.  Wads- 
worth  received  in  money  the  sum  of  $10,000,  there  were  debts 
of  the  firm  then  unpaid  amounting  to  about  #430,000. 

2d.  Mr.  Wadsworth,  at  the  time  of  making  the  said  agree- 
ment under  the  predicate  of  his  bill,  had  actually  withdrawn 
all  the  capital  lie  had  paid  into  the  said  firms,  one  and  all,  and 
a  portion  of  the  profits,  while  there  remained  unpaid  of  the 
debts  of  C.,  F.  &  Co.,  amounting  to  about  #430,000. 


193 

Mr.  Spink  testifies,  on  page  81,  cross  45,  "that  Wadsworth 
never  paid  into  the  said  three  firms  (on  the  predicate  of  his 
bill)  in  property  and  money,  but  $17,471.84." 

On  page  79,  cross  42,  he  testifies,  "that  Wadsworth  drew 
out  of  the  three  firms  the  sum  of  $73,279.01,"  and  on  page  80, 
cross  44,  he  says,  "  that  Cooley  and  Farwell,  to  be  equal  in 
their  drafts  to  Wadsworth,  they  would  have  been  entitled  to 
draw,  more  than  they  did,  $68,892.77." 

Now,  if  the  firm  of  C.,  F.  &  Co.,  is  to  be  taken  to  be  but  the 
continuation  of  the  firm  of  C.,  W.  &  Co.,  as  Mr.  Wadsworth  in- 
sists, then  he  has  drawn  in  money  from  the  funds  of  that  firm, 
$73,279.01,  when  he  had  paid  into  the  firm  only  $17,471.84 — 
thus  o\terdrawTing  the  actual  capital  he  paid  into  said  firm,  or 
that  he  paid  into  the  said  three  firms,  (on  his  basis,)  the  sum  of 
$55,807.17.  Be  it  remembered,  that  on  the  basis  that  Mr. 
Wadsworth  desires  this  Court  to  adopt  in  its  adjudication  upon 
the  matters  in  controversy,  he  has  not  paid  into  the  capital 
stock  but  $17,471.84,  and  that  he  has  drawn  out  for  his  private 
use  the  sum  of  $73,279.01,  and  at  the  same  time  complains, 
because,  in  the  settlement  of  January  21,  1862,  his  capital  was 
not  refunded  to  him  ;  and  at  the  same  time  he  takes,  by  said 
agreement  of  the  21st  of  January,  1862,  $10,000  more  of  the 
funds  for  his  private  use,  notwithstanding  there  was  debts  un- 
paid of  $430,000.  His  scrupulous  exactness  is  certainly  note- 
worthy ;  and  his  feelings  of  exact  justice  toward  his  partners 
and  the  creditors  of  the  firm  seem  to  have  been  compelled  to 
look  through  the  lens  of  his  personal  selfishness. 

Why  is  it  that  Mr.  Wadsworth  places  himself  in  such  strange 
positions  before  this  Court,  when  viewed  from  his  bill  of  com- 
plaint and  the  evidence  ?  Simply,  because  he  has  attempted 
to  ignore  the  real  agreements  of  the  partners  and  all  their  acts, 
done  in  conformity  to  said  agreements.  Thus  he  is  thrown 
into  the  greatest  inconsistencies  in  his  pretended  statement  of 
facts  in  his  bill ;  and  thus,  too,  his  acts  under  said  agreement 
(some  of  which  are  presented  in  the  evidence)  are  in  direct 
conflict  with  his  averments  in  his  bill.  It  is  but  natural  that  it 
should  be  so.  No  man  can  attempt  to  perpetrate  a  fraud  upon 
another  without  exposing  himself  to  the  danger  of  being  de- 
tected bp  the  inconsistencies  of  his  acts  and  sayings.  We  ac- 
knowledge that  he  is  "  sharp,  shrewd  and  cautious,"  as  many 
witnesses  have  testified,  but  "  sharp,  shrewd  and  cautious  ' 

25 


194 

i 

men  cannot,  without  great  danger  of  detection,  attempt  to 
pervert  truth  and  facts.  Truth  and  fact  go  hand  in  hand,  side 
by  side,  like  two  parallel  lines,  and  never  cross  each  other; 
while  falsehood  and  fact  cross  each  other's  lines.  In  this,  and 
in  no  other  manner  can  his  inconsistencies  be  accounted  for. 

NINETEENTH    POINT. 

Mr.  Wadsworth's  charge,  that  the  said  agreement  of  the  21st 
of  January,  1862,  was  a  fraud  upon  him,  and  therefore  void,  is 
disposed  of  by  his  own  statement  to  John  H.  Dunham,  Esq., 
of  Chicago,  in  which  he  virtually  pronounces  said  allegations 
of  fraud,  mere  fabrications.  Mr.  Dunham  testifies,  on  page 
619  Int.  3,  that  in  "  October  or  November,  1863,  Wadsworth 
stated  to  me  that  he  had  the  utmost  confidence  in  Mr.  Cooley, 
that  the  result  of  the  difficulty  was  owing  to  Mr.  Farwell'S  new 
mode  of  book-keeping,  he  believed.  My  impression  is  that  he 
stated  he  did  not  believe  that  either  of  them  would  deliberately 
commit  a  fraud ;  he  knew  Cooley  wouldn't.  There  was  a  good 
deal  of  conversation  in  detail  about  it,  all  of  which  I  can't  re- 
collect." On  page  620,  I.  5,  in  reply  to  the  question,  "What, 
if  anything,  did  he  say  about  mistakes  ?"  he  answers  :  "  My 
general  impression  from  the  conversation  is,  that  there  were 
mistakes  made -by  Farwell  in  his  manner  of  book-keeping."  In 
answer  to  the  6th  Int'y,  he  says  :  "  I  don't  recollect  that  there 
was  anything  said  about  the  profits  arising  from  the  firm  that 
succeeded  Cooley,  Farwell  &  Co.,  except  that  his  leaving  the 
firm  turned  out  a  mistake"  As  to  the  feeling  among  business 
men  at  the  time  said  agreement  was  made,  in  answer  to  the 
7th  int.,  he  says  that  Mr.  Wadsworth  stated  to  him,  "  that  the 
future  was  so  uncertain  that  each  one  of  these  gentlemen,  him- 
self, (Wadsworth)  Cooley,  and  Farwell,  were  desirous  of  re- 
tiring from  business.  And  he  (Wadsworth)  stated  in  connec- 
tion with  that,  that  it  was  a  mistake  on  his  part  in  retiring 
from  business"  In  answer  to  the  8th  int'y,  he-  states  that 
there  was  much  said  as  to  the  general  feeling  of  uncertainty  of 
future  business,  and  "  that  the  war  looked  very  much  like  ter- 
minating the  January  preceding.  Had  it  have  closed,  disaster 
would  have  overtaken  every  man  engaged  in  business.  He 
asked  me  if  that  was  not  the  feeling.  I  told  him  that  it  Avas, 
so  far  as  I  kncAV."  On  page  621,  in  answer  to  the  9th  int'y,  he 
stated  that  Wadsworth  told  him  that  "  the  uncertainty  of  com- 
mercial affairs  in  the  future  was  the  reason  for  his  retiring, 


195 

(from  business  at  that  time).  That  in  their  negotiations  his 
partners  felt  very  much  as  he  did."  In  answer  to  the  llth  int. 
he  says  he  was  acquainted  with  the  feeling  and  prospects  of  the 
business  community.  Prudent  men  felt  as  if  there  was  great 
uncertainty.  The  prospects  for  making  money  were  not  good. 
Governor  Bross  testifies,  on  pages  485-6-7,  that  Mr.  Wads- 
worth  told  him  that  there  was  no  fraud  on  the  part  of  Cooley 
&  Farwell,  and  that  it  was  only  a  mistake  in  the  account. 
Mr.  Spink  testifies,  on  page  90,  cross  67,  that  the  books  were 
kept  accurately,  with  the  exception  of  the  said  errors  of  inter- 
est made  in  favor  of  Wadsworth.  On  page  105, cross  74,  he  testi- 
fies, that :  "The  books  show  full  credit  to  each  of  the  partners 
for  the  actual  capital  originally  paid  into  the  first  firm  by  each 
of  them.  They  show  full  credit  for  the  share  of  profits  in  the 
three  firms,  to  which  each  was  entitled,  and  I  found  no  errone- 
ous charges,  other  than  those  of  interest,  as  pointed  out  here- 
tofore." In  answer  to  cross  int.  75,  page  106,  he  says  :  "  There 
are  no  accounts  properly  chargeable  to  either  of  the  partners, 
which  have  not  been  charged  or  paid."  On  page  221,  cross 
int'y  195,  he  says:  "In  my  examination  of  the  books  of  ac- 
count of  the  said  three  firms,  I  have  not  discovered  any  evi- 
dence of  deceit,  or  intention  to  deceive  in  the  manner  they,  or 
any  of  them  have  been  kept,  or  in  the  entries  therein  con- 
tained." 

What  was  the  mode  of  book-keeping  adopted  by  said  firms, 
or  by  Mr.  Farwell  ?  The  ordinary  one,  by  double  entry.  There 
has  not  been  any  evidence  to  impeach  the  mode  of  book-keep- 
ing adopted,  or  that  it  was  other  than  the  usual  double  entry 
mode.  Does  Wadsworth  expect  to  impeach  the  mode  adopted 
by  mere  assertions  and  allegations  in  his  bill  ?  If  he  does,  he 
cannot  expect  that  this  court  will  follow  such  impeachment.  If, 
then,  the  books  were  kept  accurately,  what  has  Wadsworth  to 
complain  of  ?  He,  in  his  conversation  with  Mr.  Dunham  and 
Gov.  Bross,  clears  both  Cooley  and  Farwell  of  all  intention  to 
defraud  him ;  for  he  says  that  "  he  did  not  believe  that  either  of 
them  would  commit  a  fraud."  How  is  a  fraud  committed  except 
by  deliberation  and  intention  ?  If  there  is  no  intention  to 
commit  fraud,  then  there  is  no  fraud  committed.  A  fraud  can 
not  have  existence  except  it  is  designed.  The  design  or  inten- 
tion constitutes  the  fraud  itself.  Xow,  if  he  clears  Cooley  and 
Farwoll  of  the  design  or  intention  to  defraud  him,  his  charge 


196 

of  fraud  in  his  bill  falls  to  the  ground,  and  his  bill  utterly  fails, 
for  it  is  based  on  the  ground  of  fraud.  The  substance  of  all 
of  complainant's  charges  are,  deception  and  fraud.  But  it  now 
turns  out  that  complainant  made  these  charges  of  deception 
and  fraud  in  his  bill,  when  he  did  not  in  fact  believe  that  his 
charges  were  true.  Fraud,  then,  is  not  the  real  difficulty  be- 
tween Wadsworth  and  his  partners  ;  for  he  comes  forth  and 
relieves  them  of  all  intention  to  defraud  him.  And,  more  than 
this ;  for  he  says  that  the  charges  of  fraud  Jor  deception  con- 
tained in  his,  bill,  as  to  the  manner  the  books  of  account  were 
kept,  were  not  in  fact  designed  or  intended  to  deceive  him,  or 
to  defraud  him ;  for,  what  errors  they  may  have  contained,  he 
says,  were  mere  "  mistakes  made  by  Farwell  in  his  manner  of 
book-keeping."  There  were,  then,  two  mistakes  made,  and  he 
states  them  to  Mr.  Dunham  to  be  as  follows  :  1st.  "  The  mis- 
takes made  by  Farwell  in  his  manner  of  book-keeping ;"  2d. 
his  own  "mistake"  of  leaving  the  firm  when  he  did.  It  has 
been  conclusively  shown  that  there  was  no  "mistake"  in  the 
manner  or  mode  of  book-keeping.  That  "Wadsworth  made  a 
"mistake"  in  going  out  of  business  at  that  time,  may  be  true. 
But  if  he  made  a  mistake  in  this  particular,  why  does  he  seek 
to  cast  the  blame  upon  Cooley  and  Farwell  ?  He  admits  that 
they  felt  as  he  did,  "  and  were  desirous  of  retiring  from  busi- 
ness, at  the  time  he  did."  He  does  not  pretend  to  Mr.  Dun- 
ham that  he  did  not  act  upon  his  own  judgment  in  retiring  from 
business.  But  he  says  he  made  a  "  mistake"  in  so  doing.  How 
and  why  so  ?  Simply  because  he  retired  too  soon  from  his  said 
copartnership,  and  for  this  reason  he  wants  some  of  the  profits 
made  by  the  firm  that  succeeded  to  the  business  of  the  said 
firm  of  C.,  F.  &  Co. ;  and,  therefore,  on  page  28  of  his  bill  he 
asks  this  court  to  declare  "  said  agreement  of  the  21st  of  Jan- 
uary, 1862,  fraudulent  and  void,  and  of  no  effect ;  and  that  he 
may  be  decreed  to  be  entitled  to  his  proportion  of  said  firm's 
assets,  and  of  the  profits  realized  by  the  use  thereof  since  the 
dissolution  of  said  copartnership." 

He  imagines  that  Cooley,  Farwell  and  Field,  who  formed  a 
copartnership  at  the  close  of  said  firm,  and  continued  its  busi- 
ness, have  made  large  profits,  contrary  to  his  expectations  and 
judgment ;  and  because  they  did  so,  and  because  he  had  made 
up  his  judgment  to  the  contrary ;  because  he  was  mistaken  in 
this,  therefore  they  are  bound  to  indemnify  him  against  this  mis- 


197 

take,  and  let  him  have  a  portion  of  their  profits.  [He  was  not  will- 
ing to  take  the  risk  of  future  trade,  but  they  were,  and  did ;  and 
having  done  'so,  and  succeeded,  he  claims  they  should  reward 
him  for  his  mistake  by  giving  him  a  portion  of  the  profits  they 
have  earned.  Now  had  this  new  firm  lost  money,  or  if  Wads- 
worth  believed  it  had,  he  would  not  be  in  this  court,  whining 
over  his  "  mistakes  "  in  retiring  from  business  at  the  time  he 
did.  He  has  been  told  that  since  the  dissolution  of  his  said 
firm,  that  Cooley  and  Farwell  have  made  more  money  than 
ever  before,  and  he  wants  a  part  of  it ;  and  the  only  way  he 
can  get  it,  is  to  set  said  agreement  aside. 

But  if  this  agreement  is  set  aside,  how  is  he  to  be  admitted 
into  the  said  new  firm,  with  which  he  never  had  anything  to 
do,  and  in  which  he  never  was  a  partner  ?  He  informs  us  that 
it  is  on  the  ground  of  the  "  use  of  the  said  'remaining  assets' 
by  the  said  new  firm,  since  the  dissolution  of  said  copartner- 
ships." This  surely  is  a  new  and  novel  mode  of  forcing  one's 
self  into  copartnership  relations  with  a  firm  that  never  had 
anything  to  do  with  him. 

A  copartnership  must  exist,  in  order  that  profits  may  be  en- 
joyed between  two  or  more  persons ;  and  a  copartnership  is 
formed  by  the  consent  and  mutual  agreement  of  those  who 
constitute  its  members.  Has  he  shown  any  agreement  forming 
a  copartnership  with  Cooley,  Farwell  &^  Field^after  the  disso- 
lution of  his  said  firm  ?  He  does  not  even  pretend  that  there 
ever  was  any.  He  has  not  even  shown,  by  any  evidence,  that 
this  new  firm  ever  used  any  of  said  "  remaining  assets ;"  and 
if  he  had,  that  would  not  entitle  him  to  any  interest  in  said  new 
copartnership,  or  entitle  him  to  receive  any  of  its  profits.  He 
must  be  a  partner,  and  liable  as  such,  to  the  risks  incurred  by 
the  copartnership  in  its  business  operations,  before  he  is  en- 
titled to  share  its  profits.  His  claim  in  this  respect,  though  not 
unlike  other  claims  put  forth  in  his  bill,  is  simply  preposterous. 

At  the  time  Mr.  "Wadsworth  made  said  agreement  of  settle- 
ment, and  retired  from  said  firm,  it  was  (as  he  stated  to  Mr. 
Dunham)  his  opinion,  that  had  the  war  closed,  as  it  was  then 
supposed  it  might,  "  disaster  would  have  overtaken  every  man 
engaged  in  business."  His  fears  upon  this  matter  were  so  great 
that  he  retired  from  said  firm  voluntarily ;  and  he  now  tells 
Mr.  Dunham  that  he  made  a  "  mistake"  in  not  having  more 
pluck  at  that  time. 


198 

But  he  was  not  alone  in  his  fears,  and  he  appealed  to  Mr. 
Dunham  if  such  fears  and  feelings  were  not  general  at  that 
time,  and  Mr.  Dunham  informs  him  that  they  were,  so  far  as 
he  knew.  These  feelings  and  forebodings  in  regard  to  the 
future  were  everywhere  participated  in,  the  whole  country 
over.  Cooley  and  Farwell,  as  we  have  before  said,  were  not 
perhaps  more  courageous  than  he  was,  except  by  reason  of  the 
necessity  that  was,  in  progress  of  events,  forced  upon  them. 

As  we  have  before  said,  the  old  firm  had  debts  to  pay, 
amounting  then  to  nearly  $430,000,  and  it  had  less  than  $600,000 
of  assets  to  pay  with,  and  at  a  time  when  business  credit  and 
confidence  were  everywhere  wanting.  Mr.  Wadsworth,  by  his 
importunate  appeals  to  Mr.  Cooley  to  lend  or  loan  him  $35,000 
for  the  reason  that  it  was  "life  or  death"  with  him,  shows  that 
they  could  not  rely  upon  him  in  this  crisis.  The  storm  that 
was  brooding  over  the  nation  was  only  gathering  blackness. 
Not  a  thunderbolt  had  riven  its  darkness.  The  nation  was 
grappled  by  treason,  and  was  held  by  the  monster  as  if  it 
were  master.  Business  men  were  filled  with  alarming  fears. 
Statesmen  stood  appalled.  It  is  not  surprising,  surely,  that 
Wadsworth  and  his  partners  desired  to  get  out  of  business,  or 
that  Wadsworth  should  seek  to  shake  off  from  himself,  and 
place  the  whole  responsibility  upon  Cooley  and  Farwell,  of 
paying  $430,000  of  indebtedness,  with  less  than  $600,000  of 
unconverted  assets  !  And  having  done  so,  and  secured  the 
advantages  of  his  said  agreement,  is  it  manly  in  him,  after 
Cooley  and  Farwell  have  struggled  through  this  mountain  of 
responsibility,  and  thereby  placed  themselves  as  first  among 
business  men  in  their  energy  and  financial  ability,  to  come 
begging  his  way  into  this  court  with  the  plea  that  he  made  a 
"  mistake"  in  retiring  from  the  said  business  at  the  time  he 
did?  After  his  confessions  and  his  said  statements  to  Mr. 
Dunham,  the  fraud  which  he  seeks  to  fasten  upon  Cooley  and 
Farwell  is  out  of  the  question,  for  he  declares  it  to  be  a  mis- 
take of  his  own. 

OF    THE    CROSS-BILL   AND    ANSWER. 

By  the  cross-bill,  Cooley  and  Farwell  ask  relief  upon  the 
following  matters : 

1st.  That  the  said  agreement  of  the  21st  of  January,  1862, 
may  be  established,  and  declared  to  be  a  sufficient  bar  to  any 
further  proceedings  of  Wadsworth  against  them. 


199 

2d.  That  Wadsworth  may  be  required  to  divide  the  said 
"  remaining  assets"  under  the  said  agreement. 

3d.  That,  in  such  division,  the  said  sum  of  $3,500  received 
by  Wadsworth  from  said  "  remaining  assets,"  may  be  charged 
to  his  account  as  so  much  of  his  proportion  of  the  money  now 
on  hand,  and  that  Cooley  and  Farwell  may  have  a  like  pro 
rata  share  of  said  money  under  said  agreement  before  the 
' '  remaining  assets"  are  divided  under  the  same. 

4th.  That  an  account  may  be  taken  of  all  the  profits  real- 
ized by  Wadsworth,  by  reason  of  his  wrongful  copartnership 
relations  with  the  said  firms  of  Huntington,  Wadsworth  & 
Parks,  C.  M.  Henderson  &  Co.,  and  Letz  &  Co.,  and  of  the 
resulting  damages,  by  reason  of  said  copartnership  relations, 
and  to  pay  over  the  same  into  said  fund,  or  said  "  remaining 
assets." 

5th.  That  Mr.  Farwell  may  receive  compensation  for  his 
services  in  collecting  and  converting  said  "  remaining  assets" 
into  money,  since  the  payment  of  the  debts  of  C.,  F.  &  Co., 
(amounting  now  to  about  $90,000),  out  of  said  "  remaining 
assets." 

Mr.  Wadsworth,  in  his  answer  :  1st.  Denies  that  the  agree- 
ment of  the  4th  of  December,  1855,  formed  or  made  new  re- 
lations and  new  terms  of  copartnership. 

2d.  He  denies  that  said  agreement  of  the  21st  of  January, 
1862,  was  a  settlement  of  all  matters  of  account  and  of  interest 
upon  stock  and  private  accounts  between  the  said  partners. 

3d.  He  admits  that  he  signed  the  said  agreement  of  the 
21st  of  January,  1862,  but  insists  that  he  did^so  without  know- 
ledge of  the  condition  of  the  firm,  and  that  Cooley  and  Far- 
well  "took  advantage  of  his  ignorance  by  false  and  fraudulent 
entries  and  fictitious  accounts,  and  by  false  statements  and 
representations  that  his  private  account  was  largely  over- 
drawn ; "  and  "  that  he  was  induced  to  sign  said  paper  writing 
solely  by  the  entries,  accounts,  statements  and  representations 
aforesaid  ;"  and  that  Cooley  and  Farwell  "  used  said  books  (of 
account)  to  prove  the  same ;  (that  is,  to  prove  that  his  private 
account  was  overdrawn,)  and  thus  induced  him  to  sign  said 
paper  writing." 

4th.  He  "  denies  that  he  was  overdrawn,  as  by  the  books  of 
account  it  was  shown,  and  as  stated  by  said  Cooley  and  Far- 
well,"  and  he  "  insists  that  his  account  was,  relatively,  far 


200 

better  than  it  was  represented  and  better  than  Farwell's,  and 
it  was  as  good  as  Cooley's,  and,  therefore,  said  paper  writing 
was  fraudulent  and  void." 

5th.  He  denies  that  Cooley  and  Far  well  were  ready  to  di- 
vide said  assets,  "  but  admits  that  C.  and  F.  notified  him  that 
they  were  ready  to  divide  them." 

6th.  He  denies  all  other  allegations  in  the  cross  bill  and  the 
equity  of  the  prayer  thereof. 

To  this  answer  Cooley  and  Farwell  filed  their  general  re- 
plication. 

The  making  and  the  execution  of  the  said  agreement  of  the 
21st  of  January,  1862,  set  forth  in  the  cross  bill  is  admitted, 
but  Mr.  Wadsworth  seeks  to  avoid  it  on  the  ground  of  decep- 
tion and  fraud  practiced  upon  him  by  Cooley  and  Farwell. 
The  whole  controversy  under  the  said  original  bill,  and  the 
cross  bill,  in  fact,  springs  or  grows  out  of  said  agreement.  In 
his  original  bill  of  complaint,  as  we  have  seen,  he  urges,  as  a 
reason  for  setting  said  agreement  aside,  that  false  entries  in 
the  books  of  account  caused  him  to  make  a  mistake  as  to  the 
relative  standing  of  the  private  and  stock  accounts  of  the  part- 
ners. In  his  answer  to  the  cross  bill,  he  makes  the  same 
alleged  cause  the  reason  for  avoiding  said  agreement  (See  3d 
and  4th  pages  of  answer  to  cross  bill.)  By  this  allegation,  in 
his  answer  to  the  cross  bill,  as  well  as  in  his  original  bill,  he 
admits  that  he  examined  the  books  of  accounts,  and  then 
charges  that  he  was  misled  by  the  false  entries,  and  thereby 
induced  to  sign  said  agreement. 

The  charges  in  the  crossbill,  as  we  have  hereinbefore  shown 
from  the  evidence  in  the  case,  have  been  all  proved.  But  Mr. 
Wadsworth  has  failed,  as  we  have  shown  from  the  evidence, 
to  prove  that  his  answer  is  true  as  a  whole,  or  in  one  material 
allegation  or  averment. 

The  charges  in  the  cross-bill,  that  Wadsworth,  without  the 
knowledge  or  con  sent  of  either  Cooley  or  Farwell,  and  in  viola- 
tion of  his  said  original  copartnership  agreements,  entered  into 
other  branches  of  wholesale  business  in  the  city  of  Chicago, 
during  the  existence  of  the  said  firm  of  C.  F.  &Co.,  with  other 
firms  as  a  partner  therein,  to  wit,  the  said  firms  of  IL,  W.  & 
P.,  C.  M.  H.  &  Co.,  and  Lctz  &  Co.,  to  the  great  injury  of 
the  business  of  the  said  firm  of  Cooley,  Farwell  &  Co.,  and  to 
the  personal  injury  of  Cooley  and  Farwell,  and  continued  such 


201 

other  branches  of  business  in  connection  with  the  said  three 
above  named  firms,  during  the  existence  of  the  said  firm  of 
Cooley,  Far  well  &  Co.,  have  all  been  clearly  and  abundantly 
proved.  We  will  refer  to  this  testimony,  to  wit: 

Edmund  Burk,  jr.,  testifies,  on  page  250,  cross  8  and  9,  "  that 
"  the  firm  of  C.  M.  Henderson  &  Co.  was  organized  February 
"  1st,  1859,  and  was  composed  of  C.  M.  Henderson  and  Elisha 
"  S.  Wadsworth.  It  commenced  business  at  the  date  of  its  or- 
"  ganization ;  it  was  engaged  in  the  wholesale  boot  and  shoe 
"  business  in  Chicago.  It  continued  four  years  and  closed  its 
"business  January  31st,  1865." 

C.  M.  Henderson  testifies,  on  page  319,  cross  31,  "that  Eli- 
"  sha  S.  Wadsworth  and  himself,  composing  the  firm  of  C.  M. 
"  H.  &  Co.,  succeeded  to  the  business  of  the  said  2d  firm  of 
"  C.  N.  H.  &  Co." 

On  page  332,  cross  49,  he  says,  that  said  firm  of  C.  M.  H.  & 
Co.  was  formed  "  about  the  middle  of  February,  1859."  Cross 
50,  "  We  may  have  succeeded  to  its  business  from  the  1st  of 
February,  1859." 

On  page  331,  cross  97,  he  testifies,  "that  he  paid  Wadsworth 
for  his  share  (one-quarter)  of  the  profits  in  the  said  firm  of  C. 
M.  PI.  &  Co.,  $17,500." 

Calvin  C.  Parks  testifies,  on  page  367,  int.  3,  "  that  E.  S. 
"  Wadsworth  entered  the  firm  of  H.,  W.  &P.,  (of  which  wit- 
"ness  was  a  member,)  about  the  1st  of  January,  1857,  and 
"continued  a  member  until  the  fore  part  of  the  year,  1861. 
"  The  firm  was  engaged  in  the  clothing  business  and  located  in 
"  Chicago." 

On  pages  370-1,  he  testifies,  "  that  the  said  firm  of  H.,  W. 
"  &  P.,  kept  a  few  of  the  same  goods  that  the  said  firm  of  C., 
"  F.  &  Co.  did,  to  wit :  Hosiery,  furnishing  goods,  buckskin 
"  goods,  shirts,  collars,  cravats,  pocket-handkerchiefs,  men's 
"  socks,  umbrellas,  mittens,  undershirts  and  drawers,  blankets 
"  of  wool,  cloths,  &c.,  and  he  was  to  have  one-quarter  of  the 
"  profits." 

On  page  373,  cross  17,  19  and  21,  he  says  :  "  He  does  not 
"  know  what  Wadsworth's  share  of  the  profits  amounted  to, 
"  and  that  he  will  not  inform  himself  so  as  to  be  able  to  state 
"  the  amount ;  that  said  firm  of  H.,  W.  *fc  P.  did  an  annual 
"  business  of  $250,000,  and  that  they  sold  their  goods  at  a 
"profit  of  from  15  to  20  per  cent." 

26 


202 

Iii  answer  to  cross  96  and  100,  he  says  :  "  That  "Wadsworth 
"  was  a  member  of  the  firms  of  C.  M.  H.  &  Co.,  H.,  W.  &  P., 
"  and  Letz  &  Co.,  and  that  he  retired  from  said  firm  of  Letz 
"  &  Co.,  prior  to  1860,  and  that  the  firm  of  Letz  &  Johnston, 
"which  succeeded  it,  failed  in  the  early  part  of  1861." 

Gilbert  R.  Smith  testifies  on  page  415,  cross  30,  "  that  Elisha 
"  S.  Wadsworth  was  a  member  of  the  said  firm  of  H.,  W.  & 
"P.  from  1st  January,  1857,  to  February,  1861."  On  page 
417,  cross  44  and  45,  he  says,  "  that  said  firm  of  H.,  W.  &  P. 
"  kept  a  profit  and  loss  account,  but  Jl  cannot  arrive  at  the 
"  profits  and  losses  without  going  over  the  books  of  two  firms 
"  that  the  sales  per  annum  amounted  to  about  $380,000;  (cross 
"  47  and  48),  he  says  about  one-quarter  of  this  was  military 
"  trade." 

Charles  H.  Fargo  testifies,  on  page  491,  int'y  1, 4,  6,  8  and  9, 
"  that  he  has  been  a  wholesale  boot  and  shoe  merchant  in 
"  Chicago  nearly  nine  years  last  past,  and  that  E.  S.  Wads- 
"  worth  was  a  member  of  the  boot  and  shoe  house  of  C.  M.  H. 
"  &  Co.,  and  that  his  connection  with  that  firm  would  have 
"  the  effect  for  us  to  use  our  influence  with  customers  we  could 
"  control,  to  go  to  some  other  house  than  Cooley,  Farwell  & 
"  Co.,  to  send  their  customers  to  C.  M.  Henderson  &  Co.  If 
"  Wadsworth  had  not  been  a  partner  in  the  house  of  C.  M.  H. 
"  &  Co.,  I  should  not  have  used  my  influence  to  send  cus- 
"  tomers  to  any  other  dry  goods  house  (than  C.,  F.  &  Co.)  I 
"  think  we  might  have  used  our  influence  to  send  customers 
"  there  rather  than  to  other  houses."  On  page  492,  inty's  11, 
12  and  13  he  says  :  "  If  Wadsworth  had  not  been  a  partner  in 
"  said  boot  and  shoe  house,  I  should  imagine  we  might  have 
"  influenced  from  thirty  to  fifty  thousand  dollars  a  year  to  the 
"  house  of  Cooley,  Farwell  &  Co.,  and  I  think  there  is  a  dozen 
"  other  wholesale  boot  and  shoe  houses  in  Chicago ;  said  other 
"  boot  and  shoe  houses  would  be  naturally  jealous  of  the  house 
"  (C.,  F.  &  Co.)  and  inclined  not  to  send  customers  there  and 
"  would  use  then:  influence  against  them."  On  page  496-7, 
cross  16,  18,  21,  he  says :  "  We  used  our  influence  against  the 
"  house  (of  C.,  F.  &  Co.)  rather  than  for  it,  during  the  time 
"  Wadsworth  was  a  member  of  the  firm  of  C.  M.  H.  &  Co. ; 
"  previous  to  that  time  we  used  our  influence  for  the  house.  I 
"  don't  [think  we  introduced  any  customers  to  C.,  F.  &  Co. 
"  after  Mr.  Wadsworth  became  a  partner  with  C.  M.  H.  &  Co., 
"  we  may  have  done  so  in  some  instances.  I  feared  to  do  so, 


203 

"because  Mr.  TV  ads  worth  was  a  partner  in  the  Louse  of  C. 
"  M.  H.  &  Co.,  which  would  give  the  house  of  C.  M.  H.  &  Co. 
"  extra  facilities  Avith  the  hoitse  of  C.,  F.  &  Co.,  enabling  C.  M. 
"  H.  &  Co.  to  become  acquainted  with  the  customers  of  C.,  F. 
"<fc  Co.,  when  other  boot  and  shoe  houses  would  not  enjoy 
"  those  facilities."  On  page  501  he  says,  "  there  were  15 
"  wholesale  boot  and  shoe  houses  in  Chicago  at  the  time 
"  referred  to,  and  11  wholesale  dry  goods  stores,  and  13  whole- 
"  sale  clothing  stores,  and  3  dealing  in  cloths  and  cassimeres, 
"  2  in  fancy  trimmings,  3  in  yankee  notions,  6  in  millinery 
"  goods." 

Henry  W.  King,  a  wholesale  clothing  merchant  in  Chicago 
for  ten  years  past,  testifies  on  page  504,  int'y  5,  that  Wads- 
worth  was  a  member  of  the  said  firm  of  H.,  W.  &  P.     Int'y  8 
to  12  inclusive,  he  testifies,  "that  the  connection  of  Wads  worth 
"  with  the  said  firm  of  H.,  W.  &  P.  interfered  very  much  with 
"  our  (firm)  introducing  trade  to  C.,  F.  &  Co.    If  it  had  not  been 
"  for  that  connection,  I  presume  there  would  have  been  a  recip- 
"  rocity  of  trade  between  us,  (C.,F.  &  Co.,  and  Barret,  King  & 
"  Co.)     We  sold  from  three  to  four  hundred  thousand  dollars 
"  per  annum,  and  we  could  have  influenced  a  large  amount  of 
"  trade  to  C.,  F.  &  Co.,  but  I  can  give  no  figures.     I  had  con- 
"  versalion  with  Cooley  soon  after  Wadsworth  formed  his  co- 
partnership with  H.,  W.  &  P.     I  was  explaining  to  Cooley 
"  why  it  was  that  we  could  not,  as  a  house,  send  business  to 
"  Cooley,  Farwell  &  Co.,  as  we  would  like  to  do,  because  of 
"  Wadsworth's  relations  with  a  clothing  house  with  whom  we 
"  were  competitors.     Mr.  Cooley  then  assured  me  that  Wads- 
"  worth's  connection  with  the  house  of  H.,  W.  &  P.  was  made 
"  without  his  knowledge  or  consent  and  that  he  was  sorry  for 
"it.    (Int'y  14.)    Wadsworth's  connection  with  said  firm  of  H., 
"  W.  &  P.  would  naturally  prevent  clothing  men  from  intro- 
"  ducing  trade  to  Cooley,  Farwell  &  Co.     (Int'y  15.)     And 
"  the  effect  upon  other  shoe  dealers  would  naturally  prevent 
"  them  from  introducing  trade  to  C.,  F.  &  Co.,  because,  if  Mr. 
"  Wadsworth,  or  the  firm  with  which  he  was  connected,  sold 
"  them  (customers)  dry  goods,  he  (Wadsworth)  would  naturally 
"  try  to  sell  them  clothing  and  boots  and  shoes ;  therefore  deal- 
"  ers  in  those  two  articles  would  not  send  their  dry  goods  trade 
"  to  the  house  (of  C.,  F.  &  Co.) "     Page  509,  he  says,  "  soci- 
"  ally,  his  firm  were  on  intimate  terms  with  C.,  F.  &  Co.,  but 
"  not  in  a  business  view." 


204 

Thomas  B.  Carter,  one  of  the  oldest  merchants  in  Chicago, 
testifies  on  page  532-3,  int'y  15,  "  that  Wadsworth's  connec- 
tion with  a  clothing  house  in  Chicago,  would  have  some 
"  effect  from  the  loss  of  business  from  other  competing  houses, 
"  that  is,  a  person  engaged  in  the  dry  goods  trade  and  also 
"  connected  with  a  clothing  house,  would  not  secure  the  cus- 
"  torn  and  good  will  of  other  firms  engaged  in  the  clothing 
"trade.  (16.)  His  connection  with  the  clothing  house  of 
"  Huntington,  "Wadsworth  &  Parks,  upon  the  business  of  Coo- 
"  ley,  Farwell  &  Co.,  would  result  to  their  (C.,  F.  &  Co's) 
"  injury  so  far  as  the  good  will  of  other  clothing  houses  were 
"  concerned,  but  to  what  extent  I  cannot  state;  in  myjudg- 
"  ment  it  would  amount  to  many  thousands  of  dollars  worth  of 
"  trade;  it  is  a  common  practice  among  business  men  to  intro- 
"  duce  customers  to  each  other,  and  customers  would  not  gen- 
"  erally  be  introduced  to  the  house  of  Cooley,  Farwell  &  Co. 
"  by  other  clothing  houses,  while  one  of  the  firm  of  Cooley, 
"Farwell  &  Co.  was  connected  with  a  clothing  house.  (17.) 
"  The  effect  of  Wadsworth's  connection  with  a  wholesale  boot 
"  and  shoe  house  would  be  the  same  as  in  the  case  of  his  con- 
"  nection  with  the  clothing  house  above  referred  to.  (18.) 
"  His  connection  with  the  boot  and  shoe  house  of  C.  M.  Hen- 
"  derson  &  Co.  would  be  the  same  as  that  given  to  the  16th 
"  int'y  in  the  case  of  the  clothing  house.  (19  int'y,  page  534.) 
"  A  clothing  house  like  that  of  Barrett,  King  &  Co.,  would 
"  have  had  it  in  their  power  to  send  to  the  house  of  Cooley, 
"  Farwell  &  Co.  a  large  amount,  say  from  20  to  50  thousand 
"  per  year,  which  they  would  not  be  likely  to  do  in  conse- 
"  quence  of  Wadsworth's  connection  with  a  competing  clothing 
"  house ;  if  the  clothing  house  of  Huntington,  Wadsworth  & 
"  Parks  was  the  only  clothing  house  in  town,  the  connection  of 
"  said  Wadsworth  with  said  clothing  house  would  be  a  benefit 
"  to  Cooley,  Farwell  &  Co.,  but  as  there  were  many  other 
"  wholesale  clothing  houses  in  the  city,  his  connection  with  the 
"  aforesaid  clothing  house  was  an  injury  to  Cooley,  Farwell  & 
"  Co.  (21,  page  545.)  I  should  say  to  compensate  Cooley, 
"  Farwell  &  Co.  for  the  injury  done  them  by  reason  of  his 
"  said  connection  with  H.,  W.  &  P.  would  require  from 
"  $5,000  to  810,000  per  annum.  (22.)  And  for  his  connection 
"  with  C.  M.  H.  &  Co.,  I  should  say  from  three  to  ten  thousand 
"  dollars  per[ annum." 


205 

Mr.  Wadsworth  seeks  to  make  these  witnesses  modify  their 
evidence  on  the  question  of  damage  to  said  firm  of  C.,  F.  & 
Co.,  and  in  doing  so  he  assumes  or  predicates  his  question  upon 
the  hypothesis,  that  the  said  firms  of  EL,  W.  &  P.  and  C.  M. 
H.  Co.  gave  to  the  firm  of  Cooley,  Farwell  &  Co.  their  entire 
and  undivided  influence,  and  that  said  damage  would  thereby  be 
lessened ;  but  in  this  he  has  failed  to  weaken  the  strength  of 
said  testimony  in  any  degree,  or  to  counteract  it  in  any  partic- 
ular. He  did  not — nor  did  he  dare  to  attempt  to — prove  di- 
rectly that  either  of  the  said  firms  of  H.,  W.  &  P.  or  C.  M. 
H.  &  Co.  gave  their  influence  to  C.,  F.  &  Co.,  for  neither  of 
them  did  ;  and  so  far  from  it,  that  there  was  a  feeling  of  cool- 
ness between  those  firms  and  C.,  F.  &  Co.,  engendered  by 
Wads  worth's  connection  with  them  in  their  said  business. 

Roger  J.  Bross,  an  old  merchant,  testifies  on  page  551,  com- 
mencing with  int'ys  14  and  15,  that,  from  information,  he 
"  knows  that  Wadsworth  was  a  partner  in  the  houses  of  H., 
W.  &  P.,  and  C.  M.  H.  &  Co.,  and  upon  the  hypothesis  that, 
by  reason  of  his  connection,  C.,  F.  &  Co.  lost  from  thirty  to 
fifty  thousand  dollars'  worth  of  trade  per  annum,  "  the  per 
cent,  of  loss  to  Cooley,  Farwell  <fc  Co.  on  such  an  amount  of 
trade  would  be  at  least  10  per  cent,  nctt."" 

Daniel  W.  Gale,  a  wholesale  dry  goods  merchant  in  Chicago 
for  ten  years  past,  testifies,  on  page  561,  int'y  6,  "that  from 
the  1st  of  February,  1857,  to  the  middle  of  the  summer  of 
1860,  and  from  the  1st  of  March,  1859,  to  July,  1863,  the  re- 
ciprocation of  trade  between  the  firms  of  H.,  W.  &  P.,  and 
his  house,  and  between  C.  M.  H.  &  Co.  and  his  house,  has  been 
as  follows :  they  sent  his  house  some  trade,  and  his  house  had 
sent  those  houses  some  trade." 

Levi  Z.  Leiter,  the  book-keeper  of  C.,  F.  &  Co.,  testifies  on 
page  579;  int.  46,  "  that  the  firm  of  C.,  F.  &  Co.  made  16  per 
cent,  profit  on  goods." 

John  M.  Johnston,  a  partner  with  Wadsworth  in  the  firm  of 
"Letz  &  Co.,"  on  page  673,  int'y  3,  testifies,  that  in  March, 
1857,  he  formed  a  copartnership  with  Elisha  S.  Wadsworth, 
Geo.  F.  Letz  and  W.  H.  Cheneworth,  under  the  name  of 
"Letz  &  Co.,"  in  the  iron  business,  and  continued  until  the 
1st  of  January,  1860.  The  name  of  (mark!)  T.  W.  Wads- 
worth  was  used  in  the  place  of  E.  S.  ^Wadsworth,  (int'y  5), 
for  the  reason  of  E.  S.  Wadsworth's  numerous  business  con- 


206 

nections.  Wads  worth  was  to  have  one-sixth  of  the  profits. 
(Int'y  10.)  I  bought  out  his  profits,  and  agreed  to  pay  him 
$4,000  for  them."  By  reference  to  Mr.  Johnson's  testimony, 
it  will  be  found  that  it  is  fair  to  conclude  that  ths  firm  of  Letz 
&  Co.  was  in  fact  unable  to  pay  its  debts,  and  in  order  that 
Wads  worth  might  slide  out  uninjured,  he  caused  a  new  firm  to 
be  organized,  which  assumed  his  said  firm's  liabilities,  amount- 
ing to  about  $40,000,  and  then  this  new  firm  makes  an  assign- 
ment, and  Wadsworth  becomes  the  principal  purchaser  of  its 
assets  at  about  one-quarter  of  their  value.  See  pages  from 
675  to  679. 

Mr.  Wadsworth's  moral  sense  is  again  seen  by  his  copart- 
nership relations  with  the  said  firm  of  II.,  W.  &  P.,  and  his 
management  with  said  firm  in  regard  to  the  capital  stock  he 
agreed  to  furnish  as  a  special  pai'tner  therein.  The  agreement 
provided  that  he  should  furnish  $40,000,  and  his  oath  on  file  in 
the  coiinty  of  Cook,  states  that  he  did  furnish  this  amount,  but 
we  see  from  the  testimony  of  Mr.  Parks,  on  pages  372-3,  that 
no  sooner  had  he  paid  it  in,  than  he  drew  it  out — or  the  sum  of 
$30,000  of  it.  And  when  that  firm  became  bankrupt,  he  re- 
tired from  it,  and  a  new  firm  wras  formed,  that  assumed  the  old 
firm's  debts,  and  thus  Mr.  Wadsworth  was  enabled  to  accom- 
plish the  feat  of  ridding  himself  of  his  liability  to  the  creditors 
of  the  said  old  firm,  in  the  amount  of  his  pretended  special 
capital  stock  of  $40,000.  See  the  testimony  of  Parks,  Smith 
and  Lovejoy. 

And  it  will  be  further  observed  that  it  is  fair  to  conclude 
from  the  evidence,  that  the  said  firm  of  Huntington,  Wads- 
worth  &  Parks,  at  the  time  it  dissolved,  was  eith<Sr  unable  or 
unwilling  to  pay  its  debts,  and  was  owing  about  $300,000 ;  and 
that  E.  S.  Wadsworth  and  Parks  went  out,  leaving  these  debts 
unprovided  for,  except  by  way  of  the  promise  of  their  copart- 
ners who  for  a  short  time  assumed  the  firm  name  of  Hun  tins:- 

O 

ton  &  Wadsworth,  (Phillip  [Wadsworth)  ;  that  this  new  firm 
went  largely  into  debt  for  goods,  and  thereby  paid  said  old 
firm's  debts,  and  then  this  new  firm  failed  and  made  an  assign- 
ment, though  it  had  sustained  no  losses  ;  and  then  they  com- 
promised these  new  made  credits  at  the  rate  of  55  cents  on 
the  dollar ;  and  so  soon  as  this  was  done,  Elisha  S.  Wadsworth 
came  back  into  the  firm,  under  the  name  of  Huntingdon, 
Wadsworth  &  Co.  Such  are  our  views  or  conclusions  as  to 


207 

ne  facts,  from  the  testimony,  and  we  think  they  are  legitimate 
deductions.  Witnesses  Pai'ks,  Smith,  Henderson  and  Burke, 
who  are  among  those  who  have  testified  to  the  said  facts,  show 
that  at  the  time  they  severally  gave  in-  their  testimony,  were 
very  strongly  biased  in  favor  of  Wadsworth,  and  refused  to 
answer  many  material  questions — evincing  a  disposition  to 
shield  the  said  Wadsworth  in  a  multitude  of  ways  by  their  an- 
swers. But  their  evidence,  when  carefully  examined  and  com- 
pared, sustains  the  conclusion  that  they  guarded  to  the  best  of 
their  ability,  the  position  assumed  by  Wadsworth  in  his  bill  of 
complaint.  (See  evidence,  commencing  on  pages  367,  403, 
448  and  673.) 

By  reference  to  said  settlement  and  agreement  of  the  21st 
of  January,  1862,  it  will  be  seen  that  it  takes  no  note  of  Elisha 
S.  Wadsworth's  copartnership  relations  with  other  firms,  in 
violation  of  his  said  copartnership  agreements  with  Cooley  & 
Farwell ;  and  it  will  also  be  remembered  that  there  is  no  proof 
showing  that  Wadsworth's  said  violations  of  his  copartnership 
agreements  with  Cooley  &  Farwell  formed  any  part  of  the 
consideration  for  said  agreement  of  dissolution.  And  there  is 
no  evidence  to  prove  that  Cooley  and  Farwell,  or  either  of 
them,  ever,  by  consent  or  otherwise,  permitted  him  to  form 
said  outside  copartnership  relations. 

But  suppose  that  Wadsworth's  said  violations  of  his  said 
several  copartnership  agreements  with  Cooley  and  Farwell 
did  form  a  part  of  the  consideration  for  the  said  agreement  of 
the  21st  of  January,  1862.  It  only  makes  more  strongly 
against  Wadsworth,  and  in  favor  of  said  agreement.  If  the 
said  agreement  was  in  part  based  upon  the  consideration  that 
Wadsworth,  in  violation  of  his  original  copartnership  agree- 
ment, had  entered  into  copartnership  with  Huntington,  Wads- 
\vorth  &  Parks,  and  Huntington  &  Wadsworth,  in  the  whole- 
saling of  ready-made  clothing ;  and  also,  in  violation  of  his 
said  copartnership  agreements,  he  entered  into  the  boot  and 
shoe  trade  with  C.  M.  Henderson,  and  made  by  this  one  oper- 
ation, nearly  $20,000  clear,  without  investing  any  capital ;  and 
also  formed  business  copartnerships  with  Letz  &  Co.,  and 
Letz  &  Johnson;  and  it  was  also  in  part  based  upon  the  fact 
that  by  some  of  these  connections  he  had  injured  his  credit 
and  reputation,  and  had  embarrassed  himself,  it  only  makes 
our  case  stronger,  and  his  weaker.  And  if  the  Court  shall  so 


208 

conclude,  we  are  content.  But  in  fact,  none  of  these  consider- 
ations entered  into  said  agreement ;  and  if  they  did  not,  we 
cannot  see  why  we  should  not  be  indemnified  by  reason 
thereof. 

The  damage  the  said  firm  of  C.,  F.  &  Co.  sustained  by  rea- 
soii  of  said  Wadsworth's  said  outside  operations,  would  not  in 
their  effects  be  confined  to  the  immediate  influence  of  compe- 
ting houses  in  Chicago,  as  aforesaid,  but  would  extend  to  the 
limit  of  the  business  acquaintance  of  the  said  firm  of  C.,  F. 
&  Co.,  and  the  personal  business  acquaintance  of  said  Wads- 
worth.  Not  only  so,  but  they  endangered  or  weakened  what- 
ever credit  he  might  have  had. 

In  the  crisis  from  1857  to  1862,  the  credit  of  all  business 
firms  and  of  individual  persons  was  carefully  scrutinized  by  all 
who  dealt  with  them.  In  connection  with  this  fact,  take  into 
account  the  other  fact  presented  in  evidence — that  'Wads- 
worth,  beside  his  said  copartnership  relation  with  so  many 
firms,  at  the  same  time  had  endorsed  the  paper  of  Huntington, 
Wadsworth  &  Parks,  which  was  put  into  the  markets  in  New 
York,  Hartford  and  Boston,  in  the  sum  of  from  one  hundred 
to  two  hundred  thousand  dollars  at  a  time  ;  and  for  the  house 
of  Leitz  &  Co.  in  about  the  sum  of  from  twenty-five  to  forty 
thousand  dollars — how  could  it  be  otherwise  than  that  his  said 
acts,  in  direct  violation  of  his  said  copartnership  agreements 
with  Cooley  &  Farwell,  would  work  ruin  to  his  credit,  and 
an  incredible  damage  to  the  said  firm  of  Cooley,  Farwell  & 
Co.?  The  immediate  damage  to  said  firm,  from  the  cause  of 
his  said  connection  with  the  said  three  outside  firms,  to  the 
trade  of  the  firm  of  C.,  F.  &  Co.,  has  been  proven  to  be  not 
less  than  one  hundred  and  fifty  thousand  dollars. 

Mr.  Carter  testifies  that  the  loss  by  or  through  such  clothing 
or  boot  and  shoe  house,  would  be  from  five  to  ten  thousand 
dollars  annually ;  and  we  find  from  the  testimony,  that  at  those 
times — from  the  1st  of  February,  1857,  to  the  1st  of  January, 
1862 — there  were  in  Chicago  fifteen  wholesale  clothing  houses, 
twelve  boot  and  shoe  houses,  and  many  other  houses  that 
would  be  liable  to  be  like  affected.  From  these  considera- 
tions it  is  evident  that  the  damage  accruing  to  C.,  F.  &  Co. 
from  said  causes,  at  the  very  lowest  estimate,  would  amount 
to  the  sum  of  $100,000  for  and  during  the  same  time.  Add  to 
this  sum  the  amount  of  injury  arising  from  Wadsworth's  trans- 


209 

fers  of  his  said  outside  copartnership  interests,  and  his  com- 
promises made  with  the  creditors  of  said  firm  of  Hnntington 
&  Wadsworth,  and  his  coming  back  into  that  firm  so  soon  as 
said  compromises  of  the  said  debts,  amounting  to  some  $225,000, 
at  fifty-five  cents  on  the  dollar,  was  effected,  and  his  transfer  of 
the  assets  and  the  liabilities  of  the  firm  of  Letz  &  Co.  to  the 
firm  of  Letz  &  Johnson,  and  the  almost  immediate  failure  of 
the  last  named  firm,  and  then  his  purchase  of  the  machinery, 
&c.,  worth  fifteen  thousand  dollars,  for  five  thousand  dollars, 
and  we  must  come  to  the  conclusion  that  such  damages  would 
amount,  in  the  aggregate,  to  at  least  the  sum  of  one  hundred 
and  fifty  thousand  dollars. 

But  money,  at  such  a  time,  cannot  compensate  for  such  in- 
jurious effects,  and  especially  when  a  commercial  crises  is 
upon  the  country,  and  every  business  man  is  compelled,  in 
order  to  succeed — no  matter  what  his  riches  and  credit  may 
be — to  husband  all  his  money  and  all  his  credit,  and  all  his 
energies  and  influence,  and  confine  the  same  to  the  limits  of 
his  own  legitimate  business. 

Who  does  not  see,  from  the  evidence  above  quoted,  that 
Wadsworth's  said  outside  business  connections — his  large  and 
reckless  endorsements  of  outside  paper,  aud  his  complicity 
with  the  said  shuffling  and  compromising  operations  above  re- 
ferred to — would  weaken  if  not  utterly  destroy  whatever  influ- 
ence and  credit  he  might  have  before  enjoyed,  and  thereby 
have  greatly  injured  the  good  credit  aud  influence  of  the  said 
firm  of  Cooley,  Far  well  &  Co.,  and  especially  at  such  a  time, 
when  the  whole  country  was  quaking  with  the  effects  of  a 
commercial  crisis  ? 

Had  the  credit  of  Cooley  and  Far  well  been  exposed  to  the 
same  strain  that  Wadsworth's  was,  the  said  firm  of  Cooley, 
Wadsworth  &  Co.  would  have  failed.  As  it  was,  Cooley  and 
Farwell,  as  shown  by  the  evidence,  were  obliged  to  call  to 
their  assistance  Charles  B.  Farwell,  who  lends  to  said  firm  his 
credit  to  the  amount  of  one  hundred  thousand  dollars,  and 
they  were  obliged  to  resort  to  other  resources,  to  raise  larger 
amounts  of  money,  to  sustain  the  business  and  credit  of  said 
firm. 

During  this  whole  time  Wadsworth  had  become  a  mere 
cipher,  and  was  quaking  under  the  perils  of  his  own  personal 
affairs,  and  was  engaged  in  trying  to  raise  money  to  pay  his 
own  personal  debts,  by  putting  up  collaterals  for  the  security 
of  the  banks  for  money  so  raised,  and  in  fact  was  trembling 
on  the  very  verge  of  bankrupty,  while  Cooley  and  Farwell 

27 


210 

were  giving  all  their  means,  and  personal  credit  and  influence, 
and  that  of  their  friends,  to  sustain  the  business  and  maintain 
the  credit  of  the  firm  of  Cooley,  Farwell  <fc  Co. 

The  good  judgment,  prudence,  business  capacity  and  credit 
of  Cooley  and  Farwell,  single  handed  and  alone,  and  without 
the  aid  of  Wadsworth,  saved  the  said  firm  from  utter  ruin ; 
and  not  only  so,  but  Wadsworth  himself  from  financial  bank- 
ruptcy. This  is  evident  from  his  own  letter  to  Mr.  Cooley,  in 
March,  1862,  above  referred  to,  asking  for  assistance,  which  is 
as  follows : 

CHICAGO,  March  7th,  1862. 

"  DEAR  SIR — I  want  you  to  lend  me  thirty-five  thousand 
"  dollars,  so  that  I  can  have  it  by  the  20th  of  this  month.  You 
"  may  think  it  strange  that  I  should  ask  you,  but  it  is  life  or 
"  death  almost  with  me.  Do,  if  it  is  any  way  consistent,  let 
"  me  have  it.  Please  write  by  return  mail.  I  will  reimburse 
"  you  out  of  the  first  collections  of  the  proceeds  of  old  firm 
"  debts.  Yours,  &c.,  E.  S.  WADSWORTH." 

"T.  B.  COOLEY." 

2d.  From  the  said  agreement  of  the  21st  of  January,  1862, 
by  which  said  settlement  was  made  between  Cooley,  Farwell 
and  Wadsworth,  of  all  their  copartnership  matters,  even  pro- 
viding for  the  division  between  them  of  the  said  remaining 
assets,  in  the  ratio  or  pro  rata  amount  due  to  each,  did  not  pro- 
vide for,  or  contemplate,  that  any  services  should  be  bestoAved 
by  either  partner  upon  the  assets  remaining,  after  the  payment 
of  the  debts  and  the  expenses  attending  such  payments.  As 
soon  as  the  said  debts  and  expenses  were  paid,  Cooley  and 
Far  well's  undertaking,  under  the  said  agreement,  was  finished, 
and  the  agreement  on  their  part  fulfilled.  Their  copartnership 
was  dissolved  and  all  the  business  of  said  firms  closed.  I 
contemplation  of  said  agreement,  there  was  no  money  to  di- 
vide, for  there  was  none  after  the  payment  of  said  debts  and 
expenses.  What  was  remaining  was  in  unconverted  assets, 
and  these  were  then  to  be  divided  between  the  said  partners, 
" pro  rata,  according  to  what  was  due  to  each."  Cooley  and 
Farwell  had  no  right,  or  rather  were  not  obligated,  to  proceed 
and  convert  the  said  assets  into  money  for  a  moment,  after 
they  had  converted  sufficient  of  the  same  to  pay  said  debts  and 
expenses.  Cooley  and  Farwell,  on  payment  of  said  debts  and 
expenses,  as  they  were  bound  to  do,  immediately  gave  notice 
to  Wadsworth  of  that  fact,  and  that  they  were  ready  to  divide 
the  said  "remaining  assets,"  under  the  said  agreement.  Wads- 
worth  refused  to  so  divide  them,  not,  however,  on  the  ground 


•211 

or  because  they  wanted  him  to  divide  them  in  the  ratio  or  pro 
rata  amount  due  to  each,  but  on  the  ground,  as  he  declares  in 
his  bill  of  complaint,  because  they  were  not  all  "  converted  into 
money"  and,  therefore,  he  says,  "  they  were  in  no  condition  to 
be  divided" 

But  why  did  he,  at  that  time,  refuse  to  so  divide  said  "  re- 
maining assets  ?"  It  was  evidently  because  he  was  determined 
in  his  own  mind  to  throw  all  the  responsibility  and  labor  of 
converting  said  "  remaining  assets  "  into  money  upon  Cooley 
and  Farwell,  or  as  much  of  them  as  possible,  and  thereby  save 
himself  the  labor,  trouble  and  care  of  his  portion  of  them  ;  and 
therefore,  we  say, 

3d.  That  Farwell,  who,  we  are  informed  by  the  evidence, 
has  had  the  sole  care  and  responsibility  of  said  "  remaining 
assets,"  and  who  has  converted  into  money  during  the  two 
years  last  past  from  $75,000  to  §90,000  of  them,  should  be  re- 
warded for  such  services  out  of  said  moneys. 

The  care  and  labor  of  collecting  and  converting  into  money 
of  $147,000  of  assets,  consisting  of  notes,  accounts,  mortgages 
and  real  estate,  scattered  over  the  entire  North-west,  is  no 
small  responsibility  for  one  man.  If  these  available  assets  had 
been  divided  between  the  said  partners  according  to  the  pro 
rata  amount  due  to  each  partner,  the  labor  of  each  in  convert- 
ing his  share  into  money  would  be,  comparatively,  small ;  yet 
it  would  be  quite  a  responsibility,  involving  much  labor  and 
attention.  Xo  one  understood  this  better  than  did  Mr.  Wads- 
worth.  And  no  one  had  more  experience  in  matters  of  this 
kind  than  Mr.  Farwell;  and  each  partner,  at  the  time  of  mak- 
ing the  said  agreement  of  settlement  of  the  21st  of  January, 
1862,  unquestionably  took  this  matter  into  consideration,  and 
thereby  determined  that  after  the  debts  of  the  firm  of  C.,  F. 
&  Co.  were  paid  by  Cooley  and  Farwell,  under  said  agreement, 
then  the  said  "  remaining  assets  "  should  be  divided  " pro  rata 
between  the  several  partners  according  to  the  amount  due  to 
each,"  or  the  amount  of  the  interest  each  had  in  the  same  ; 
and  that  from  and  after  the  time  the  said  debts  were  paid,  each 
partner  was  to  take  his  said  portion  of  said  assets  into  his  own 
care,  and  assume,  from  that  time,  all  the  labor  and  responsi- 
bility of  collecting  and  converting  the  same  in  his  own  way 
into  money.  But  Mr.  "Wadsworth,  immediately  on  the  pay- 
ment of  said  debts,  omits  and  refuses  to  divide  the  said  "  re- 
maining assets,"  not  because  of  deception  and  fraud,  but  for 
the  reason,  as  he  says,  Cooley  and  Farwell  "had  not  converted 
them  into  money,"  and  therefore  they  were  not,  he  says,  in  a 


212 

"  condition  to  divide."  After  having  received  the  considera- 
tions and  the  benefits  of  the  considerations  of  the  said  agree- 
ment, he  then  starts  out  with  his  plan  to  force  the  care  and 
responsibility  of  all  these  assets  upon  Cooley  and  Farwell.  At 
this  time  he  had  not  gone  so  far  in  his  scheme  as  to  charge 
fraud.  At  that  time  he  had  not  probably  been  assisted  by  his 
solicitor  in  trumping  up  his  pretence  of  deception  and  fraud. 
Wadsworth1  s  prolific  brain  needed  some  little  assistance  upon 
this  part  of  the  game.  At  this  time  Wadsworth  did  not  seek 
to  avoid  the  said  agreement,  but  only  to  construe  it.  His  said 
construction  of  it  was,  evidently,  not  approved  by  his  solicitor, 
and  a  more  bold  and  pretentious  scheme  was  afterwards  con- 
cocted. But  he  worked  upon  his  first  plan  about  eighteen 
months  before  he  changed  it  for  that  of  his  present  or  that  of 
his  solicitor's.  During  this  time,  his  great  effort  was  to  cause 
Cooley  and  Farwell  to  continue  in  the  sole  possession  of  all 
the  said  "remaining  assets,"  not  converted  into  money,  and  to 
divide  the  money  arising  from  the  same  as  fast  as  it  was  real- 
ized. 

He  is  notified  once  and  again  that  the  said  debts  were  paid 
and  that  the  said  remaining  assets  were  ready  for  division  as 
per  said  agreement,  and  his  only  reply  is,  that  they  are  "  not 
converted  into  money,"  and  therefore,  they  are  in  "  no  condi- 
tion to  be  divided."  Notwithstanding  his  said  refusal  to  so 
divide  said  assets,  he  comes  into  this  Court  and  insists  that  he 
had  been  always  ready  to  divide  said  assets,  and  that  he  had 
repeatedly  urged  such  division  and  that,  he  was  informed  by 
Cooley  and  Farwell  that  the  said  debts  had  not  all  been  paid, 
and  that  Cooley  and  Farwell  continually  "  urged  unfounded 
and  frivolous  reasons  "  or  excuses  for  not  being  ready  to  so 
divide  the  said  assets.  In  no  one  particular  is  the  double  deal- 
ing and  mischievous  pretenses  of  Wadsworth  more  patent  than 
is  his  course  in  this  transaction.  The  truth  cannot  be  disguised 
from  the  whole  case  when  the  facts  therein  are  taken  together, 
that  the  only  motive  Mr.  Wadsworth  had  at  first,  for  his  said 
refusal,  was  to  throw  all  the  care,  labor  and  responsibility  attend- 
ing the  conversion  of  the  said  assets  into  money  upon  Cooley 
and  Farwell,  and  wholly  shirk  out  himself.  He  is  not  willing 
to  lift  a  finger  or  make  the  slightest  effort  himself.  He  knows 
that  Cooley  and  Farwell's  interests  therein  are  so  great  that 
they  will  not  neglect  them  if  he  does,  and  therefore  his  interest 
therein  is  entirely  safe.  He  may  have  thought,  and  possibly 
have  been  advised,  that  the  said  "  remaining  assets,"  being  a 
part  of  the  copartnership  assets  of  the  said  firms,  Cooley  and 


213 

Far  well  as  copartners  with  him  in  said  firms,  were  obliged,  not- 
withstanding their  said  agreement  of  the  21st  of  January,  1862, 
to  collect  or  convert  the  same  into  money  without  any  charge 
upon  the  said  "  remaining  assets,"  or  upon  him  for  their  services 
and  labor ;  and  thus  he,  by  refusing  to  divide  the  said  "  remain- 
ing asset?,"  could  escape  all  care,  responsibility  and  labor  iu 
regard  to  them,  and  at  the  same  time  reap  all  the  benefits  and 
advantages  that  he  would,  if  he  carried  out  the  said  agreement 
on  his  part  with  fidelity,  or  that  he  would,  if  he  gave  his  atten- 
tion and  labor  thereto.  But  in  this  calculation  or  scheme,  he 
forgot,  and  possibly  his  adviser  may  have  overlooked  the  fact, 
that  the  said  firms  and  each  of  them  had  been  dissolved,  and 
all  matters  between  the  said  parties  as  partners  were  settled 
by  the  said  agreement ;  and  that  in  contemplation  of  the  law, 
these  parties  were  no  longer  partners  per  se,  and  that  the  said 
"  remaining  assets  "  were  in  fact  by  their  said  agreement  no 
longer  partner  ship  assets,  but  were  simply  joint  property  and 
no  longer  partnership  property.  The  said  agreement  changes 
the  condition  of  the  said  parties  thereto,  as  between  themselves, 
from  that  of  the  condition  or  relationship  and  obligations  of 
partners  to  that  of  joint  owners.  By  this  agreement  all  part- 
nership matters  and  accounts,  and  all  partnership  debts,  were 
provided  for  and  paid  under  it,  and  all  personal  matters  of 
accounts  were  settled — disposed  of  and  closed  up.  As  part- 
ners— that  is  as  between  themselves — there  was  no  more  to  be 
done  in  the  way  of  agreements  as  to  what  they  or  either  of 
them  were  to  do.  The  division  of  the  said  "  remaining  assets" 
was  provided  for,  and  if  this  could  not  be  done  mutually 
between  them  under  the  said  agreement,  they  were  left  to  the 
law  governing  all  such  cases  of  joint-ownership  of  undivided 
property. 

A  joint-ownership  is  not  a  copartnership.  One  joint-owner 
cannot,  simply  by  being  a  joint-owner,  bind  another  joint- 
owner.  A  partnership  is  different.  Partnerships  must  be  vol- 
untary, and  therefore  no  partner  and  no  majority  of  partners 
can  introduce  a  new  member  without  the  consent  of  the  others. 
The  delectus  personarum  is  always  preserved,  and  so,  if  one 
partner  sells  out  his  interest  in  the  firm,  this  works  a  dissolu- 
tion of  the  partnership,  which  cannot  be  renewed  except  by  the 
agreement  of  all.  See  1  Parsons  on  con.  131,  139.  It  is,  or 
may  be  sometimes  difficult  to  distinguish  between  partnership 
and  tenancy  in  common,  and  between  partnership  and  joint- 
ownership.  In  general,  if  the  property  owned  jointly,  is  so 
owned  for  the  purpose  of  a  joint  business,  and  is  so  used,  and 


214 

the  profits  resulting  from  a  common  fund,  it  is  partnership 
property,  otherwise  not.  Ibid.  137,  146.  See  also  Post  vs. 
Kimbciiy,  9  John  470;  Murray  vs.  Bogart,  14  John  318; 
Howes  vs.  Tillinghast,  1  Gray  289.  A  partnership  is  wholly 
distinct  from  that  of  joint-ownership.  One  partner  may  bind 
his  co-partner  without  the  knowledge  or  consent  of  the  co- 
partner. Partnership  as  to  strangers,  or  to  the  commercial 
world,  merges  the  individual  rights  and  interests  into  a  com- 
mon firm  interest,  responsibility  and  liability — giving  to  each 
partner  all  the  power  of  the  several  partners  in  the  dealings  of 
the  firm  and  its  interests,  and  in  its  behalf  and  upon  its  account. 
See  Collyer  on  Part.  Sec.  19,  20,  22.  These  "remaining 
assets"  are  joint  property,  and  no  longer  partnership  property, 
and  hence  the  law  governing  joint-owners  governs  the  parties 
owning  the  said  "  remaining  assets."  For  this  reason  Mr. 
Farwell  under  the  cross-bill  is  entitled  to  be  re-embursed  out 
of  said  "  remaining  assets  "  for  the  services  he  has  rendered  to 
the  said  joint  owners  thereof,  in  the  care  and  responsibility 
that  has  been  thrown  upon  him  in  regard  to  the  same,  and  his 
labors  in  converting  into  money  the  value  of  about  $90,000  of 
them.  And  from  the  evidence  of  Messrs.  Carter  and  Leiter, 
Mr.  Farwell  is  entitled  to  the  sum  of  about  $5,000  for  such 
labor  and  care.  See  evidence  page  535,  int'y  23,  24,  25,  and 
page  576,  int'y  22  to  27  inclusive,  and  page  592,  int'y  69. 

In  the  examination  of  the  testimony  of  witnesses  Burke, 
Parks,  Henderson  and  Smith,  introduced  by  Wadsworth  in  his 
behalf,  it  is  evident  that  they  were  strongly  influenced  by  their 
feelings  of  personal  friendship  for  him ;  and  possibly  by  their 
prejudices  against  Cooley  &  Farwell.  At  least  it  is  manifest 
that  they  severally  favored  him  all  they  could  by  evading 
many  of  the  questions  on  their  cross-examination,  and  by  ut- 
terly refusing  to  answer  others ;  while,  in  their  examinations 
in  chief,  they  were  ever  ready  and  willing  witnesses.  Their 
testimony,  therefore,  should  be  examined  with  careful  scrutiny 
and  discrimination,  and  received  with  some  considerable  al- 
lowance. (See  their  testimony  on  page  from  276  to  279,  and 
from  415  to  420,  and  cross-int'ys  from  35  to  62,  inclusive,  and 
on  page  367,  cross-int'ys  from  14  to  21,  from  37  to  45,  and  from 
69  to  78  and  the  lllth). 

In  reviewing  this  whole  case  under  the  evidence  in  connec- 

o 

tion  with  the  pleadings,  the  conclusion  that  all  the  fraud  and 
knavery  that  Wadsworth  has  sought  to  cast  upon  the  fair  fame 
of  Cooley  and  Farwell,  has  been  brought  home  to  his  own 
door,  is  irresistible.  In  all  of  Mr.  Wadsworth's  partnership 
relations  with  Cooley  and  Farwell,  and  in  his  actings  and  do- 


215 

ings,  we  find  that  from  the  beginning  to  the  close  of  the  same, 
he  has  shown  the  out-croppings  of  deceit  and  fraud.  His  clan- 
destine or  secret  association  with  the  said  outside  firms,  in  vio- 
lation of  his  solemn  copartnership  agreements  with  Cooley 
and  Farwell,  places  him  in  the  front  rank  of  the  boldest  of 
deceivers,  and  the  most  bare-faced  defrauders,  'and  that,  too, 
on  a  large  scale.  With  this  record  fastened  upon  him,  he 
comes  into  this  court  of  equity  for  relief  from  his  contracts  of 
settlement  of  all  the  matters  growing  out  of  the  partnership 
relations  of  the  said  firms  of  C.,  W.  &  Co.,  Nos.  1  and  2,  C. 
N.  Henderson  &  Co.,  and  C.,  F.  &  Co.,  which  were  made  and 
entered  into,  on  his  part  at  least,  after  long  deliberation  and 
careful  examination  of  all  the  books  of  said  firms,  and  of  the 
facts  in  the  said  premises.  Whether  he  made  a  good  or  a  poor 
bargain,  is  not  a  question  for  the  consideration  of  this  court. 
The  evidence  of  the  value  of  the  merchandise  at  the  time  the 
said  last  agreement  was  made,  wholly  removes  the  question  of 
the  value  from  the  case.  If  Mr.  Wadsworth  made  an  unwise 
contract,  as  matters  and  trade  afterwards  turned,  he  alone  is 
responsible,  and  he  alone  must  bear  its  consequences.  But  as 
business  prospects  appeared  when  he  made  the  said  contract, 
he  was  wise  in  his  judgment.  Whether  wise  or  not,  he  cannot 
expect  a  court  of  equity  will  attempt  to  look  into  this  or  that 
providence  or  fortunate  circumstance,  or  Avhether  it  favored 
this  or  that  bargain  or  contract  in  the  future  of  events.  If  it 
did,  it  would  find  entanglements  and  mysteries  quite  too  great 
and  difficult,  for  its  powers  of  comprehension,  or  of  adjudica- 
tion. 

What,  then,  should  be  the  decree  of  this  court  under  the 
original  bill  and  answer,  and  the  cross-bill  and  answer,  and 
under  the  evidence  and  the  law ?  We  insist  that  the  court 
should,  1st.  Dismiss  the  bill  as  to  the  said  defendant  Field. 
•Jd.  It  should  find  that  the  said  assignment  of  the  interest  of 
the  first  firm  of  C.,  W.  &  Co.,  in  the  said  assets  of  the  firm  of 
C.  N.  H.  &  Co.,  was  a  contract  made  between  the  said  firm  of 
C.,  W.  &  Co.,  No.  1,  and  Wadsworth,  and  for  a  valuable  con- 
sideration ;  and  decree  that  the  same  should  stand  as  a  settle- 
ment of  that  matter. 

3d.  It  should  find  that  the  said  agreement  made  on  the  21st 
of  January,  1862,  was  made  and  entered  into  by  the  parties 
thereto,  for  a  valuable  consideration,  and  that  the  same  was  a 
full  settlement  of  all  the  copartnership  matters,  and  of  the  pri- 
vate accounts  connected  therewith,  then  unsettled  between 
them  ;  and  decree  that  the  same  stand  as  such  settlement,  and 
that  Mr.  Wadsworth  should  fulfill  his  agreement  with  Cooley 


and  Farwell,  by  the  division  of  the   said  "  remaining   assets" 
between  them  in  the  ratio  of  the  pro  rata  amount  of  the  inter- 
est of  each  partner  therein  as  provided  by  said  agreement. 
4th.     It  should  find,  that  the  said  "remaining  assets"  were 

*  O 

no  longer  partnership  assets,  but  undivided  property  belonging 
to  Cooley,  Farwell  and  Wadsworth,  jointly,  in  which  their  re- 
spective interests  were  determined  by  their  said  several  balan- 
ces as  made  up  under,  the  said  agreement  last  mentioned  ;  and 
decree  that  the  said  remaining  unconverted  assets  be  sold  un- 
der the  direction  of  this  court,  after  due  publication,  to  the 
highest  bidder,  for  cash, and  that  the  proceeds  thereof  be  divided 
between  the  said  parties  in  interest,  in  the  proportion  aforesaid. 

5th.  It  should  find  that  after  the  payment  of  the  debts  of 
C.,  F.  &  Co.,  to  wit,  on  the  23d  day  of  January,  1863,  it  was 
the  duty  of  the  said  parties  to  proceed  and  divide  the  said  "re- 
maining assets"  as  aforesaid,  and  that  the  reason  why  the  same 
was  not  so  divided  was  the  fault  of  Mr.  Wadsworth,  and  that 
from  that  time  Mr.  Farwell  devoted  his  care  and  services  upon 
said  assets  for  the  mutual  benefit  of  the  said  joint  owners,  and 
that  his  said  services  were  of  the  value  of  $5,000;  and  decree 
that  said  sum  of  money  should  be  paid  to  Mr.  Farwell  from 
the  money  now  on  hand  and  belonging  to  said  joint  property. 

6th.  It  should  find  that  Mr.  Wadsworth,  in  violation  of  his 
said  copartnership  agreements  with  Cooley  &  Farwell,  and  to 
the  injury  of  the  said  firm  of  C.,  F.  &  Co.,  formed  and  entered 
into  partnership  relation  with  other  firms,  to  wit:  the  firms  of 
Huntington,  Wadsworth  &  Parks,  Huntiugton  &  Wadsworth, 
C.  M.  Henderson  &  Co.,  and  Letz  &  Co. ;  and  that  by  reason 
of  these  wrongful  doings,  the  said  firm  of  C.,  F.  &  Co.  sus- 
tained a  loss  of  $> ;  -and  decree  that  Mr.  Wadsworth  pay 

into  the  said  joint  assets  or  property  for  the  benefit  of    said 

joint  owners  the  said  sum  of  8 ,  which  when  so  increased, 

shall  constitute  a  part  of  said  remaining  assets,  or  property, 
to  be  divided  between  the  said  parties  in  interest,  under  the 
said  agreement  as  aforesaid. 

7th.  It  should  find  that  there  Lave  been  incidental  expenses 
attending  the  care  of  said  remaining  property,  and  the  expense 
of  converting  them  into  money,  other  than  that  of  the  said 
f  ervices  of  Mr.  Farwell,  which  are  unpaid ;  and  decree  that 
all  such  expenses  be  paid  out  of  the  said  joint  fund  before  the 
final  division  of  the  same  ;  and  that  Elisha  S.  Wadsworth  pay 
the  costs,  &c. 

All  of  which  is  most  respectfully  submitted. 

C.  M.  HAWLEY, 
Solicitor  and  Counsel  for  Cooley  &  Farwell. 


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